Full text of "Leo M. Frank. The Dead Shall Rise by Steve Oney"

AND THE 

DEAD 
HALL RISE 



The Murder of Mary Phagan 
and the Lynching of Leo Frank 



STEVE ONEY 



PANTHEON BOOKS, NEW YORK 



To Madeline Stuart, 
who believed in me 



"When we dream about those who are long since forgotten 
or dead, it is a sign that we have undergone a radical trans- 
formation and that the ground on which we live has been 
completely dug up: then the dead rise up, and our antiq- 
uity becomes modernity." 

— FRIEDRICH NIETZSCHE, 

Mixed Opinions and Maxims 



Contents 



i. April 26, 1913 


3 


2. Look Out, White Folks 


18 


3. Extra, Extra 


35 


4. Onward, Christian Soldiers 


46 


5. A Good Name, A Bad Reputation 


7i 


6. Skulduggery 


9i 


7. A Clean Nigger 


118 


8. A Tramp Alumnus 


145 


9. Skirmishes 


162 


10. Prosecution 


190 


11. Defense 


261 


12. Verdict 


306 


13. Appeals in and out of Court 


345 


14. Brightness Visible 


37i 


15. Darkness Falls 


397 


16. A Change of Heart 


423 


17. Cause Celebre 


444 


18. Commutation 


469 


19. Marietta 


513 


20. Milledgeville 


529 


2 1 . The Lynching of Leo Frank 


56i 


22. Burial 


573 


23. Recessional 


596 


24. The Revenant 


630 


Epilogue 


644 


Notes 


651 


Bibliography 


709 


Acknowledgments 


713 


Index 


717 



AND THE 



HALL RISE 



ONE 



That morning, thirteen-year-old Mary Phagan, after eating a break- 
fast of cabbage and wheat biscuits, devoted herself to getting 
dressed. First, she donned stockings and garters, then a store- 
bought violet dress and gunmetal-gray pumps. Two bows in her auburn hair 
and a blue straw hat adorned with dried red flowers atop her head com- 
pleted the outfit. Mary wanted to look nice, for Saturday, April 26, 1913, 
marked a special occasion— Confederate Memorial Day. Around 11:45, 
with a silvery mesh purse and an umbrella (the skies were misting rain) in 
her hands, she boarded the English Avenue trolley headed to downtown 
Atlanta, where the annual parade would soon begin. 

Well turned out or not, Mary would have been one of the prettiest girls 
in any crowd. Eyes blue as cornflowers, cheeks high-boned and rosy, smile 
beguiling as honeysuckle, figure busty (later, everyone acknowledged that 
"she was exceedingly well-developed for her age"), she had undoubtedly 
already tortured many a boy. There was simply something about her— a tilt 
to the chin, a dare in the gaze— that projected those flirtatious wiles that 
Southern girls often employ to devastating effect. 

As her correspondence with her country cousin and friend Myrtle Bar- 
more illustrates, Mary could be a handful. On December 30, 1912, she 
wrote: 

Well, Myrt I don't know what to think of you for not coming [to lunch on 
Christmas day]. I think that was a poor excuse. When I come up there I'll 
give you what you need. Me and OUie [her sister] & Mama & Charles 
& Joshua [her brothers] went out at Uncle Jack Thurs. and taken dinner. 
"But gee" how we did eat. Had fresh "hog." I don't know when I can get 
to come. Mama is getting where she will not let me go anywhere. "But 
gee" I am going to save my money and go West. Gee I will have some 
time . . . When I come there, we will have some time "kid." 

Yet despite her beauty and airy hopes (many inspired by the movies, 
which she attended frequently and followed in such magazines as Photo 



4 AND THE DEAD SHALL RISE 

Lore), Mary Phagan was unlikely to escape drab and impoverished envi- 
rons. She lived in Atlanta's Bellwood section, no one's vision of a beautiful 
wood. Northwest of downtown, the neighborhood was bordered on one 
side by the Exposition Cotton Mill and its adjacent factory-owned village, 
Happy Hollow, on another by the clanging sheds of the Atlantic Steel Mill 
and on a third by an expanse of crookedly carpentered "nigger shacks." In 
homage to its bare-knuckled ward politics, the community was called "the 
bloody fifth." 

Like most Bellwood people, Mary was a hillbilly. Her father, a farmer 
named William Joshua Phagan, had died of the measles in 1899 a few 
months before her birth in Alabama. Around 1900, Mary's widowed 
mother, Fannie, carried the children back to the family's ancestral home 
near Marietta in Cobb County, twenty miles northwest of Atlanta. 

At one time, Phagan had been a fine name around Marietta. During the 
1 890s, the patriarch— William Jackson— had stood in the traces behind his 
own mules on his own land snug against the Blue Ridge mountains that rim 
Cobb County. But the old man had accompanied his son to Alabama, and 
after the boy's death, there he remained. When Fannie Phagan and her 
brood returned to Georgia, they moved in with her people, the Bentons, in 
the Sardis section, a rural area several miles outside Marietta. 

In 1907, the family relocated again— this time to the dingy mill town of 
Eagan, a tiny place encysted in the southern Atlanta suburb of East Point. 
There, the widow Phagan opened a boardinghouse.The clan didn't move to 
Georgia's capital until 1912, when Fannie remarried. Her new husband, 
John W. Coleman, toiled intermittently at the Exposition mill but was 
presently employed by the municipal sanitation department. 

That, down deep, Mary Phagan cleaved tight to her struggling family can 
be seen in the lines of a poem entitled "My Pa," which she'd recently copied 
from Successful Farmer magazine and presented to her stepfather: 

My pa ain't no millyunaire, but, Gee! He's offul smart! 

He ain f t no carpenter, but he can fix a feller's cart . . . 

My pa ain't president becoz, he says, he never run, 

But he could do as well as any president has done . . . 

My pa ain't rich, but that's becoz he never tried to be; 

He ain't no 'lectrician, but one day he fixed the 

telephone for me . . . 

My pa knows everything, I guess, an ' you bet I don 't care 

'Coz he ain't president or rich as any millyunaire! 

Whenever things go wrong, my pa can make 'em right, you see; 

An' if he ain't rich or president, my pa's good enough fer me! 



APRIL 26, I913 5 

Like many girls her age, Mary had quit school to help out at home. In 
1909, at the age of ten, she'd hired on part-time at a textile mill. In 191 1, 
she'd taken a steady job at a paper manufacturer. In 1912, she'd moved to 
her current position at the National Pencil Factory, where she was paid ten 
cents an hour to run an apparatus called a knurling machine that inserted 
rubber erasers into the metal tips of nearly finished pencils. 

Tough as times had been for the Phagans, the family was no worse off 
than most Atlantans in the early twentieth century. During these years, 
refugees from Georgia's hardscrabble tenant farms poured into the city, 
driven from the flatlands by the fluctuating price of cotton, from Appa- 
lachia by a rocky soil unkind to seed and plow. Figures compiled by the 
United States Census Bureau show that between 1900 and 1910 Atlanta 
nearly doubled in size. Many of the new arrivals toiled in the mills, chief 
among them the Fulton Bag and Cotton Mill, whose factory-owned village, 
Cabbagetown, spread out in row after identical clapboard row east of 
downtown. For these thousands of souls, the average workweek lasted 66 
hours, and pay fell 37 percent below that earned by northern workers. In a 
city whose cost of living was exceeded among other American cities only by 
Boston's, a wage of ten or fifteen cents an hour did not go far. In 191 1, 
Atlanta's Journal of Labor reported four thousand requests for assistance; 
in 1912, five thousand. 

There were other problems as well. Over half of Atlanta's school chil- 
dren—both white and Negro— suffered from anemia, enlarged glands, heart 
disease or malnutrition. Death rates were abnormally high for citizens of all 
ages. (In 1905, 2,414 of every 100,000 Atlantans died; the national average 
was 1,637.) And there wasn't much indication that things would get better 
soon. More than 50,000 Atlantans lived with no plumbing. To service its 
10,800 "earth closets," as the newspapers called them, the city provided just 
fifteen horse-drawn honey wagons. Moreover, the capital's physicians pos- 
sessed no means of isolating and then combating infections, as Georgia was 
among only a handful of states yet to set up a department of vital statistics. 

Nonetheless, Atlanta's crackers— as country folk come to town were 
known generally— and its lintheads— as millworkers were known spe- 
cifically—did not spend their time in despair. On April 1, they'd staged 
their own musicale— the first annual Atlanta Fiddler's Convention— at the 
Municipal Auditorium. The master of ceremonies was Colonel Max Poole, a 
one-armed Confederate veteran from Oxford, Georgia, who played by 
cradling a bow under his stub, while the featured performer was Fiddlin' 
John Carson, a Cabbagetown resident and future RCA recording star who 
toted his 17 14 Stradivarius reproduction in a feed sack. The Scotch-Irish 
reels the fiddlers favored— "Trail of the Lonesome Pine," "Annie Laurie," 



6 AND THE DEAD SHALL RISE 

"Hop Light, Ladies"— could sure enough move a crowd. By closing night of 
the three-day festival, Momma and 'em were clogging in the aisles. 

The spirit of Atlanta's crackers was independent to the point of contrari- 
ness and a little bit hellish. No matter how bad things got, folks weren't 
likely to complain unless, of course, their dignity was threatened, which was 
exactly what the city's industrialists, by relying increasingly on child labor- 
ers, were now doing. 

Rarely, if ever, had Atlantans been as conscious of the difficult lives to 
which so many of their children had been reduced as on April 26, 19 13. 
thinks Georgia treats little toilers worst, declared the headline in 
the afternoon's Atlanta Georgian over an article pointing out that "Georgia 
is the only state that allows children ten years old to labor eleven hours a 
day in the mills and factories, and is worse in that respect than North Car- 
olina, where the age limit is twelve years." Even more damning, the piece 
detailed how just a few months earlier a group of Georgia factory owners 
had banded together to kill a bill in the state senate that would have raised 
the legal working age to fourteen. 

The Georgian's story was but the latest in a series of attacks by the news- 
paper on exploitative factory owners. William Randolph Hearst, its pub- 
lisher since he purchased the sheet a year before, had pursued the issue 
relentlessly. His campaign, while intended to win readers, was not entirely 
disingenuous. The press baron's wife, Millicent, was obsessed with the "little 
girl in the mill town [who] is not receiving a living wage." And his chief 
correspondent and ponderous moral conscience, Arthur Brisbane, was a 
fanatic on the subject. Earlier in the spring, Brisbane had filed a long, prob- 
ably apocryphal piece about a Georgia mill owner so depraved that he 
refused to release his employees during daylight to attend the burial of one 
of their tiny coworkers. Entitled "A Funeral by Lamplight," the story was 
set in "a squalid room at midnight," where "a coffin rests on trestles" and 
children in "all stages of emaciation" moaned and sobbed. 

Hearst was not alone in calling attention to the plight of Atlanta's under- 
age workforce. Elsewhere in the city on this spring Saturday, others were 
speaking out just as forcefully. During a Confederate Memorial Day ser- 
mon delivered at the downtown Oakland Cemetery, Dr. Charles Lee, a first 
cousin of General Robert E. Lee, stood on a platform at the base of the 
Sleeping Lion, the Confederacy's Tomb of the Unknown, and told a rain- 
soaked audience of a thousand: 

Our principles were not defeated when we surrendered at Appomattox. 
The wars are not over. There are other enemies, bitter ones, that must 
be fought— emigration, labor, the double standard of child labor and 
white slavery. Our fathers would face these and defeat them had they the 



APRIL 26, I9I3 7 

youth and vitality that was once theirs, and it behooves us to do it for their 
sake, if nothing else. 

Meantime across town at the Wesley Chapel, the Southern Sociological 
Conference was convening. Among the convocation's goals was the formu- 
lation of tactics to put an end to "the awful curse" of child labor. Attended 
by some one thousand educators, pastors and social workers (many of them 
Negro), the affair was chaired by Alexander J. McKelway, regional secre- 
tary of the National Child Labor Committee, an organization best known as 
the sponsor of the photographer Lewis Hine, whose portraits of begrimed 
little coal miners and millworkers had alerted America to the Dickensian 
dilemma of its urchin wage earners. 

The three-day Atlanta assembly was not devoted solely to the topic of 
child labor. Also on the agenda were such subjects as "Race Problems" and 
"Organized Charities." In fact, the convention was something of a referen- 
dum on the myriad problems affecting the city's poor. Yet in the end, the 
fiercest stir was created by the remarks of Owen R. Lovejoy, general secre- 
tary of the National Child Labor Committee, who promised the multitude: 
" 'Thy Kingdom come' means the coming of the day when child labor will 
be done away with, when every little tot shall have its quota of sunlight and 
happiness." 

How this vision could be realized was a subject of great debate. Ideas 
involving everything from labor unions to legislation, and ranging from the 
Utopian to the revolutionary, vied for attention. At the radical end of the 
spectrum could be heard alarming notions inspired by the fact that many 
of Atlanta's factories, among them the Fulton Bag and Cotton Mill, were 
Jewish-owned. At first such talk was discouraged. In fact, when Dr. Edwin 
M. Poteat, the president of the Baptist-endowed Furman University in 
Greenville, South Carolina, began to denounce Jews for their purported 
crimes against workers, Alexander McKelway cut him off in mid-diatribe. 
But Poteat literally walked his text over to the Baptist Tabernacle. There, 
after telling a packed house that "in America today, the immediate conflict 
is between the bosses and the people," he lit into the faith that he believed 
had produced a disproportionate share of the oppressors. "The Jewish race 
lost its divine commission when it rejected Jesus as the Saviour," he thun- 
dered. "Up to that time, it had been the leader in religion. Every great idea 
contributed to the thought of the world came from the Jews. In fact, the 
Jews were chosen of God, but they rejected the stone that is the keystone 
of the arch." Then, for good measure, Poteat flayed the Catholics: "The 
Catholic church has no place in America. The priest is 2,000 years out of 
date. The nation cannot and will not submit to the encroachments of the 
despot, even in religion." 



8 AND THE DEAD SHALL RISE 

Considering the many outcries on the topic of child labor, one Georgian 
was conspicuously silent on April 26, 1913. In his heyday, Thomas E.Watson 
had been the state's most relentless advocate for the workingman, leading a 
quarter-century-long campaign against the forces of rapacious capitalism. 
To "The Sage of McDuffle County," factories were the "soulless" locus of 
modern evil, dynamos studded by "a hundred dull red eyes, indicative of the 
flames within which were consuming the men, women, and children, the 
atrocious sacrifice to an insatiable god!" 

Rail-thin, redheaded and possessed of galvanizing rhetorical skill, Wat- 
son was equal parts stem-winding stump speaker, defense lawyer, poet, 
popular historian, sentimental defender of the Old South and seer of an 
unlikely New South. Early on, he had divined that the strangest but truest 
allies in the region were poor white farmers and Negroes, and with these 
groups— each victimized by Dixie's elites— as his constituency, he had 
ascended to the United States Congress. 

But since the mid- 1890s, when leaders of a rival political faction stuffed 
the ballot box to deny him reelection to the House of Representatives from 
Georgia's predominantly rural tenth district, Watson had been in decline. 
His troubles had increased in 1896 after the Populist Party's national 
ticket— William Jennings Bryan for president, Watson for vice president— 
went down to defeat. By the early 1900s, the self-proclaimed friend of "Old 
Man Peepul" had abandoned his black supporters and become, after his 
own overwrought fashion, a muckraker, pillorying "the Standard Oil 
crowd" and various sleek plutocrats and plunderers in the pages of Tom 
Watson's Magazine. Eventually, these targets proved unsatisfying, and in 
the teens, the agrarian rebel focused his guns on the insidious foreigner 
behind it all. Week after week in a new publication, the Jeffersonian, he 
explored innovative ways to excoriate that "fat old dago" who cohabited 
with "voluptuous women"— the Pope. 

Ultimately, the United States government indicted Watson for violating 
postal laws against sending obscenity through the mail. His trial was sched- 
uled to begin in May. While he retained power as a behind-the-scenes king- 
maker, in terms of his own electability he was, as he put it, "in the Valley of 
the Shadow," and friends and critics alike speculated as to his mental stabil- 
ity. He no longer seemed capable of mustering the initiative to take on gen- 
uine far-ranging injustice. "Your Uncle T.E.W.," as Watson often referred 
to himself in print, simply wasn't there for his poor little nieces, Atlanta's 
factory girls. 



Due to a shortage of sheet brass at the pencil factory, the week ending April 
26, 1913, had not been a good one for Mary Phagan. Ordinarily, she was 



APRIL 26, I913 9 

scheduled to work fifty-five hours. During the past six days, however, she'd 
been needed only for two abbreviated shifts. The sealed envelope awaiting 
her in her employer's office safe contained just $1.20. Still, it was some- 
thing, which was why after she got off her trolley in downtown Atlanta, she 
walked not to Peachtree Street, where the parade was forming, but to 37 
South Forsyth Street, where she worked. 

The building that housed the National Pencil Company was four stories 
in height, a full city block in length. Situated just below a ribbon of railroad 
tracks that formed an unofficial border between Atlanta's commercial and 
industrial districts, the place bore scant resemblance to the squat brick and 
frame constructions surrounding it. Banner Sheet Metal, Southern Belting, 
Keystone Type Foundry, Schenck Brothers Machine Shop and the local 
John Deere distributor were all of a piece, drab and close to the ground. 
Only this bulky interloper a door up from the northwest corner of Forsyth 
and Hunter broke the pattern. 

Yet what ultimately set the old Venable Building— so named for its orig- 
inal owners— apart was its architecture. Granite facade dominated by a 
series of somber arches that repeated themselves on each succeeding floor, 
main entry topped by a fan-shaped brass transom bearing a bas-relief 
image of the sun, upper levels punctuated by clusters of sash windows that 
seemed to glower from beneath beetling stone brows, the structure was a 
passable example of the ponderous style that had flourished throughout 
New England during the gilded age: Richardsonian Romanesque. Initially 
operated as a hotel— the Granite Hotel, logically enough— the edifice had 
been designed to dignify. Instead, it intimidated. Around noon, Mary Pha- 
gan went inside. 



Twenty-nine-year-old Leo Max Frank, the superintendent of the National 
Pencil Company, had spent most of the morning of April 26, 1913, in his fac- 
tory office working on the books. Saturdays were invariably the same for 
him: triplicate invoices on each job (white sheet to the purchaser, pink to 
the majority stockholder for serial recording, yellow to the alphabetical 
file), lading bills, commission forms for the salesmen and distributing 
agents, and a financial report balancing the costs of labor, machinery and 
materials (lead, wood, rubber, paint) against earnings. 

In spite of the sheet-brass shortage, it had been a busy week at the 
National Pencil Company. Though output had been depressed— 2,719^ 
gross of new pencils— inventory had more than met demand, enabling the 
factory to dispatch 4,374 gross of pencils to the freight yards, most destined 
for the shelves of such five-and-dime stores as F. W. Woolworth and S. H. 
Kress, others special-ordered and headed to such coveted customers as 



10 AND THE DEAD SHALL RISE 

"Cadillac" and "Packard." This embarrassment of pencils had generated an 
avalanche of paperwork, all of it landing on the factory superintendent's 
desk. 

Leo Frank was not an ugly man, but he was quite decidedly no blandly 
handsome Georgia boy. It wasn't hard to see his delicate, small-boned, dis- 
tinctly Hebraic face as the flesh-and-blood articulation of a mechanical 
drawing— jaw long and angular, chin sharply squared off, nose a drafts- 
man's triangle rising from elliptical cheeks. His features, however, were not 
pure geometry. Full-lipped and sensual, his mouth was too pretty. His eyes, 
magnified by thick-lensed wire-rimmed spectacles, bulged perceptibly. At 
five feet six inches and 120 pounds, he appeared just the sort to relish the 
task of tabulating figures. And he did— yet not only for the work's sake. By 
applying "scientific methods" to the manufacturing of pencils, he was 
ascending to the top of Atlanta's German-Jewish aristocracy. 

Since arriving in Georgia nearly five years earlier, Frank had enjoyed a 
propitious rise. The Texas-born, Brooklyn-reared factory superintendent 
was the product of good German- Jewish stock. His recently retired father, 
Rudolph, though he made his living in the new world as a salesman, had 
trained in Dusseldorf as a physician. His mother, Rae (short for Rachel), 
had stayed at home raising Leo and his younger sister, Marian. Mean- 
time, his uncle— Confederate veteran Moses Frank— was a globe-trotting 
Atlanta-based magnate who owned a substantial percentage of National 
Pencil Company stock and whose address was generally the best hotel in 
whatever city he was visiting. Young Frank did not, however, owe his posi- 
tion solely to this influential patron. Well educated— drafting studies at 
Pratt Institute, an engineering degree from Cornell University— Leo had 
apprenticed with two northern concerns: B. F. Sturtevant in Hyde Park, 
Massachusetts, and the National Meter Company in New York. He had also 
traveled to Germany to learn the pencil business at Eberhard-Faber. 

More important, Frank had married well. Twenty-three-year-old Lucille 
Selig Frank was the granddaughter of Levi Cohen, cofounder of Atlanta's 
reform synagogue, the Temple. Emil Selig, Lucille's father, worked for the 
family's thriving business— West Disinfecting ("Largest Manufacturer of 
Disinfectant in the World," trumpeted the ads). Through his new connec- 
tions, Frank had forged relationships with numerous leading lights of the 
wandering Southern tribe. One brother-in-law, Alexander E. Marcus, ran a 
stylish Atlanta haberdashery, while Lucille's Athens, Georgia, cousins, the 
Michael brothers, owned the college town's flagship department store. Even 
Leo's lone Christian relative through intermarriage cut an important figure 
in the business world. Charles Ursenbach, a Lutheran and Frank's other 
brother-in-law, operated the glove and cosmetic concessions at Atlanta's 



APRIL 26, I913 II 

most fashionable women's clothing salon, J. P. Allen, one of the city's few 
importers of Parisian couture. 

As the newly elected president of Gate City Lodge No. 144 of the B'Nai 
Brith, Frank was among his faith's most visible representatives. With five 
hundred members, the chapter sponsored dances, violin and vocal recitals, 
and lectures, and in late March, its leaders had pulled off a coup. They had 
persuaded their national executive committee to select Atlanta as the site 
for the B'Nai Brith's 1914 convention. 

Outside of work, Frank's world was one of culture and privilege. 
Atlanta's German- Jewish section centered along Washington Street, sev- 
eral blocks south of Georgia's impressive domed capitol. It was a leafy old 
neighborhood of magnolia trees and pavered sidewalks lined by stone 
walls, and its residences— many two-storied and gabled, most embraced by 
porches— bespoke substance and poise. While a few of the wealthier sorts 
reared here had already moved to fancier purlieus such as Inman Park (a 
Frederick Law Olmsted-inspired Victorian subdivision) or Druid Hills (a 
verdant enclave of mock-Tudor estates clustered around a new country 
club), most of the city's leading Jewish families remained in the section or at 
the very least visited once a week to attend services at the Temple on South 
Pryor Street or charitable events at the Hebrew Orphans' Home on Geor- 
gia Avenue, a Moorish castle whose onion-domed spires rose above the 
neighborhood in exotic foreign counterpoint to the slender church steeples 
that spiked the sky all around it. 

The men and women whose lives were closely tied to the Washington 
Street area were an impressive lot. There were, for instance, the Riches, three 
of whose sons had founded the eponymous department store that was 
Atlanta's preeminent retailer. Then there were the Montags, whose patri- 
arch—Mister Sig— not only controlled a majority share of National Pencil 
Company stock but owned a paper-manufacturing empire that bore the 
family name. Without Joseph Hirsch— a millionaire clothing merchant, city 
council member and health care activist— Grady Hospital, the town's first 
medical facility to provide reliable service for the indigent, would not have 
gotten off the ground. Without Henry Alexander, a young lawyer who filed 
the Atlanta Art Association's incorporation documents, the High Museum 
would not have come into being. Without Mayer Wolf sheimer, a butcher and 
gourmet food purveyor, a tin of caviar would not have been available to the 
capital's epicureans. And Oscar Elsas, president of the Fulton Bag and Cot- 
ton Mill, employed more people than anyone else in town. Then there was 
Victor Hugo Kriegshaber. Proprietor of a construction supply firm and an 
officer of the Atlanta Loan & Savings Company, Kriegshaber would soon 
assume the presidency of the Chamber of Commerce. 



12 AND THE DEAD SHALL RISE 

Presiding over this thoroughly assimilated minority was a rabbi who 
could well have been called the great assimilator. David Marx had come to 
Atlanta in 1895 at the age of twenty-three. When he'd arrived, he discov- 
ered a Jewish community that, though well established (according to a 
191 1 magazine article, Caroline Haas, daughter of banker Joseph Haas, was 
the "first white female child" to enter life in Atlanta), still clung to tradi- 
tion. While the Hebrew Benevolent Congregation had been organized in 
1867, its directors had heretofore hired only German-born rabbis. With 
Marx, a New Orleans native, the capital's Jews finally eschewed the old 
ways of the old world. Within five years of his appearance, Marx had abol- 
ished the bar mitzvah, ordered the removal of hats in the Temple and 
endorsed the Reform Union prayer book. Marx also shed rabbinical garb 
in favor of a business suit, repudiated Zionism and inaugurated Sunday 
services that outdrew the traditional Friday-evening and Saturday- 
morning services combined. 

By 1913, not only was Marx's ministry a popular success but the rabbi 
was himself a celebrity. Guest columnist for the Atlanta Journal, frequent 
speaker in both the statehouse and the pulpits of the capital's churches, he 
had even started what would become an Atlanta tradition— ecumenical 
Thanksgiving services held at the Temple but conducted by Presbyterian, 
Baptist and Unitarian pastors. 

The lone segment of the populace that David Marx ignored was com- 
prised of the orthodox Jews who had just begun to immigrate to Atlanta. 
While the influx of Russians and Poles into the South was but a trickle com- 
pared to the floodtide pouring into New York, enough of them had settled 
in Georgia's capital to support several synagogues and import customs 
that evoked the Gypsy world across the water. As Eli Evans points out in 
The Provincials, a study of Southern Jewry: "The Germans . . . shook their 
heads at the newcomers— they wore skullcaps in public, spoke in an embar- 
rassing language called Yiddish, lived on the poor side of town and trucked 
with the Negroes as customers." So while Harry Epstein, the longtime rabbi 
of an orthodox congregation, would later scoff, "Marx would have been an 
excellent Presbyterian minister; he knew little about the Talmud and they 
taught absolutely nothing in the Sunday school," such criticism mattered lit- 
tle to the Temple crowd, whose sights were set not on Jerusalem but on 
somewhere closer to home. Again according to Evans: "He [Marx] was try- 
ing to say to . . . Christian neighbors, 'Look— we're not the kind of Jews you 
think we are —we're just like you.' When members of the congregation said, 
'He made us proud to be Jews,' they were referring not to pride in the 
teachings of Judaism but pride in his acceptance by the gentile community, 
which they assumed to represent acceptance for themselves." 



APRIL 26, I913 13 

Still, there would always be territory from which all Jews— even those 
resembling Presbyterians— would be barred, and in Atlanta, the line was 
drawn north of Tenth Street and east of the Ansley Park neighborhood at 
the front gate of the Piedmont Driving Club. Though the dashing Aaron 
Haas— a legendary Confederate blockade runner— was among the club's 
founders, by the turn of the century this haughty social preserve had 
become a restricted bastion of WASPdom, the exclusive domain of those 
Bourbon-cured old families that preferred to hold their high teas and debut 
their daughters among their own kind. Hence in 1905, Victor Kriegshaber, 
Walter Rich and a few others had formed the Standard Club, which in just 
eight years had become the foremost social institution in the Jewish life of 
Atlanta. Now, at dusk, the city's Christian peerage repaired to its sanctum, 
the Jews to theirs, and Atlanta came to be known— at least to the Jews— as 
"a five o'clock town." Yet while Rabbi Marx's followers went their own way 
at sunset, during business hours, there was nowhere they could not go, noth- 
ing they could not become, for like their gentile counterparts, they prac- 
ticed moneyed Atlanta's one true faith: free enterprise. 



Whatever the difficulties facing Atlanta's poor, its powerful and wealthy 
citizens saw the spring of 1 913 as the moment the city was joining, in the 
Journal's words, "the permanent rank of the nation's metropolises." Tower- 
ing over Atlanta's skyline was a handful of shining new high-rises. While 
some of the structures housed luxurious hostelries such as the Georgian 
Terrace and Winecoff, the largest of them— the Hurt, Candler and Grant— 
were frankly and beautifully office buildings. Real estate speculators had 
become the city's most affluent citizens, men capable of paying $357,000 for 
prime commercial lots, as one did on Saturday, April 26, then crowing that 
such purchases were bargains. 

It was a time not only of expansion but of newfangled rages. Atlanta's 
Pierce- Arrow dealer had recently signaled the end of the horse-and-buggy 
era by torching twenty-five phaetons, victorias and sulkies in a public bon- 
fire. The more daring debs were wearing "cubist gowns" and affecting a 
"cubist walk" in line with the ideas of futurist painters. A bookstore in the 
best shopping district was displaying prints of a French nude, "September 
Morn," that had been banned in Boston. And in several weeks, the Atlanta 
Georgian would kick off a campaign to raise the city's population from its 
current 173,713 to 500,000 by 1920. 

That many of these newcomers might be Yankees was fine with Atlan- 
ta's elite, for unlike their impoverished kin, the hard-charging sorts who 
reigned in Georgia's capital had long ago struck the Stars and Bars. In 1886, 



14 AND THE DEAD SHALL RISE 

Henry Grady, the forward-looking editor of the Atlanta Constitution, told 
investment-minded members of New York's New England Society: "We 
have . . . put business above politics . . . We have reduced the commercial 
rate of interest from 24 to 6 percent, and are floating 4 percent bonds. We 
have learned that one northern immigrant is worth fifty foreigners." In the 
wake of these remarks, the city's leaders had never looked back. 

Deeply mulched in hyperbole, Atlanta— which after all had not been 
incorporated until 1845 and consequently never did bear much resem- 
blance to such older southern cities as Richmond or Charleston— had 
become a place where influence as opposed to reverence, hustle as opposed 
to charm composed the coin of the realm. For "live-wire boosters" who 
wanted to strike it rich, it offered untold attractions. The textile and steel 
industries were the most obvious allure. Yet the city would never truly sully 
itself with the dust of the loom or the fire of the smelter. No, its destiny rode 
the rails— the L & N, the Southern, the Atlanta and West Point— that con- 
nected it to the North and West and made it a center of transportation, sales 
and distribution. 

If one man could have been said to embody Atlanta's progressive tem- 
perament in 1 9 13, he was Georgia's governor-elect, John M. Slaton, linked 
by blood to a tradition of high-mindedness and by marriage to one of 
the city's great fortunes. His father was the longtime superintendent of 
Atlanta's public schools. His wife, the former Sallie Grant, was heiress to a 
$2 million estate conceived in property, built by railroads and compounded 
in bonds. 

John and Sallie Slaton inhabited the highest stratum of Atlanta society. 
At forty-six, Georgia's new chief executive moved effortlessly from court- 
house to boardroom to garden reception to the Paces Ferry Dancing Club, 
where he was an avid turkey trotter. As a lawyer, he represented many of 
the city's biggest businesses— among them, the Fulton Bag and Cotton 
Mill. And as a politician, he consistently catered to corporate interests. 
Observed the Constitution: He "not only has never known the bitterness of 
defeat but [has] not even had to feel the twinge of a single temporary set- 
back in a uniformly brilliant career." 

If possible, the new first lady was an even more dazzling figure. Though 
she had experienced profound grief (her first husband committed suicide), 
Sallie Slaton had retained the grace and style of a celebrated belle while 
maturing into a patroness of the arts. Educated at the Ballard Seminary, 
where a smitten professor composed a piano trilogy whose component 
pieces sang the pink of her lips ("Anemone"), the blue of her eyes ("The 
Blue Bells") and the white of her brow ("The Lily of the Valley"), she now 
devoted her talents to the Atlanta Players Club, where she was soon to 



APRIL 26, I913 15 

portray Lady Augusta Bracknell in a production of Oscar Wilde's The 
Importance of Being Earnest. Sallie Slaton's charms were so universally 
acknowledged that even the often piquant Polly Peachtree— the Geor- 
gian's pseudonymous gossip columnist— offered an unqualified endorse- 
ment: "I frankly and freely confess myself her ardent admirer. Her beauty 
and wit will make the executive mansion during her husband's administra- 
tion the most brilliant state court in all these United States." 

On April 26, 1913, the story making the rounds was that John Slaton 
and Luther Z. Rosser, arguably Atlanta's fiercest litigator, were merging 
their law practices into the new firm of Rosser, Brandon, Slaton & Phillips. 
While the Rossers were also pillars of Atlanta's patrician class, Rosser 
was in demeanor and style Slaton's antithesis. As the blunt instrument 
the city's powerful engaged to demolish those who stood in their way, he 
had acquired a reputation for charging outlandish fees and employing 
brusque courtroom tactics. He was presently earning the unheard-of sum of 
$100,000 a year representing, among others, the Georgia Railway and Elec- 
tric Company (predecessor of the Georgia Power Company), which was 
embroiled in a battle in Rabun County, high in the Blue Ridge. The utility's 
officers wanted to open a $5 million generating station in the mouth of pris- 
tine Tallulah Gorge, but resistance from those claiming the project would 
despoil "one of the greatest scenic wonders of the world" was furious and 
had found its voice in an Appalachian widow whose husband, General 
James Longstreet, had been a Confederate hero. It was Rosser's job to 
make sure that neither this fiery opponent nor the hallowed specter she 
invoked stood in the way of lights for Atlanta's streets or power for her fac- 
tories. 

As news of Slaton and Rosser's impending affiliation was bruited 
about Atlanta, the principals refused to confirm the reports. However, the 
governor-elect, back in town following a preliminary trip north to acquaint 
financiers in Boston and on Wall Street with business opportunities in 
Georgia, did consent to reflect on the excitement that had not only precipi- 
tated the partnership but was invigorating both finance and fashion in the 
city. "Whereas once Georgia was largely attractive to agricultural interests," 
Slaton told a reporter, "it is now attractive to manufacturers who wish to 
harness her natural resources and reap profits in assured safety." One of the 
greatest of these natural resources was, of course, the state's supply of child 
laborers. Far from being frowned upon by industrial barons, the practice 
was advocated for both its economic advantages and its supposed benefits 
for the children. As no less a personage than Asa G Candler, president of 
Atlanta's quintessential enterprise, the Coca-Cola company, had recently 
stated: "The most beautiful sight that we see is the child at labor; as early as 



l6 AND THE DEAD SHALL RISE 

he may get at labor the more beautiful, the more useful does his life get to 
be." In this, the National Pencil Company— whose 170-member workforce 
consisted largely of teenage girls— was perfectly in step. 



On April 26, 1913, dramatic proof of Atlanta's new status as a seat of com- 
merce and culture could be found at the Municipal Auditorium. There, 
at 8 p.m., Arturo Toscanini, the conductor of New York's Metropolitan 
Opera Company, would raise his baton; Enrico Caruso, the fabled tenor, 
would take the stage in the role of Mario Cavaradossi; and a stylishly 
attired 6,433 would settle back in their seats for the season's grand finale 
performance of Giacomo Puccini's Tosca. 

During the previous week— "A Week of Wonders," proclaimed one 
headline writer— Atlantans had celebrated the company's record-breaking 
Southern engagement (seven shows, a $91,000 gate) with elegantly catered 
cocktail parties, sumptuous late-night suppers in the ballrooms of Peach- 
tree Street's hotels, and elaborate entertainments at the Piedmont Driving 
Club. The festivities had been spirited in so many senses of the word that 
the Constitution's editorial cartoonist had approvingly caricatured the city 
on the paper's front page as a red-nosed dandy in top hat and tails clutching 
a champagne glass from which half-notes and clef signs bubbled in giddy 
profusion. 

Leo Frank, however, avoided the dizzying round of opera-related festiv- 
ities that were attracting most Atlantans of his station. In fact, Saturday 
afternoon, while his wife and her mother enjoyed the Met's matinee pro- 
duction of Gaetano Donizetti's Lucia di Lammermoor, Frank remained at 
the office. The women missed Caruso, but the atmospherics were just as 
transporting as those that would suffuse the evening show. The fashions 
were just as smart. The diva, Frieda Hempel, just as inspired. And the illu- 
sion that the host city had been transformed into Manhattan on the Chatta- 
hoochee just as blinding. 



As for the vast majority of Atlantans, at the exact moment the curtain was 
rising for the Met's matinee, they were packing five and six deep on both 
sides of Peachtree Street to watch the Confederate Memorial Day parade. 
First, a police honor guard cleared the way for the grand marshal and 
various dignitaries, most notably outgoing governor Joseph M. Brown, a 
leading citizen of Marietta. Next, a brass band set an appropriately martial 
tone for the companies of United States infantrymen, Georgia national 
guardsmen, military academy cadets, Boy Scouts, Odd Fellows and Knights 
of Pythias. The stage, of course, was being set for the thin gray line, and soon 



APRIL 26, 1913 17 

enough, the ragged formation of five hundred stooped veterans— many 
in their patched butternuts, a few hoisting faded regimental banners— 
straggled into view. "The majority of them," noted the Journal, "were afoot, 
walking not so alertly as they did a few years ago. Some were riding, having 
come to the day of life when exertion must be spared, [although] the flash in 
their eyes showed that they had not forgotten the times, half a century ago, 
when music bade them farewell as they went to battle." 

The climactic scene in the afternoon's pageantry belonged to the 
young— battalion after battalion of white-uniformed elementary school 
students, each group accompanied by a drum corps. Stretched out over 
seven blocks, the four thousand children marched proudly, orderly, only 
occasionally capitulating to urges from the crowd to give the rebel yell. 

Mary Phagan, however, never saw these dashing boys, never heard their 
high-pitched cries of resurgent insurrection. 



TWO 



They found her around 3:30 Sunday morning at the rear of the 
National Pencil Factory basement. Partially hidden behind a parti- 
tion that closed off a storage shed running nearly the length of one 
side of the place, she lay on her left shoulder, arms folded beneath her torso, 
face pressed into a trash-filled depression, head pointed toward Forsyth 
Street, toward the front. While her dress was hitched up around her knees 
and a shoe was missing, not until they turned her over could they appreciate 
the savage and perverse nature of the crime. 

Caught in the beam of Call Officer W. F. Anderson's flashlight, the girl's 
battered visage mesmerized even as it appalled: right eye purple and puffy, 
cheeks bruised and badly scratched and, most severe, scalp jaggedly gashed 
open just above the left ear. These wounds, however, had apparently not 
caused death. Twisted around the girl's neck and tied in a slipknot in back 
was a seven-foot length of K-inch wrapping cord. Girdling the noose were 
two strips of cloth torn from her skirt, but such a clumsy, not to mention 
curious, bit of handiwork could not obscure the signs of strangulation. A 
trenchlike scar where twine had cut into flesh was plainly visible. Mean- 
while, the poor thing's thickly swollen tongue protruded far over her lower 
lip, and blood had bubbled from her mouth and ears. 

Later, the responding officers would agree that the most chilling aspect 
of all was the color of the body. When Newt Lee, the plant's Negro night 
watchman, had phoned in the alarm, he'd said: "A white woman has been 
killed up here." The girl, though, was black as pitch. Her features — even her 
eye sockets and nostrils— were caked with soot, and her mouth was choked 
with cinders. After fishing a scrap of paper from the debris upon which her 
head so rudely rested, Sergeant R. J. Brown, the morning watch com- 
mander, tried to wipe away the grime. "I rubbed the dirt and trash from her 
face," the sergeant would subsequently remember, "and then I said that she 
was a white girl, [but] the others said that she was colored." 

The initial attempts to determine the victim's race— indeed, the initial 
attempts to determine much of anything— were not made easier by the 
surroundings. From the factory lobby, there were only two ways into the 
basement— an elevator (metal door shut, car parked somewhere above) 



LOOK OUT, WHITE FOLKS 19 

and a wooden plank ladder that descended from a tiny scuttle hole. Some 
200 feet long, the rock-walled, earthen-floored cavity was narrow as a cata- 
comb and just as dark. The single permanent source of illumination, a flick- 
ering gas jet at the front of the room, had been turned so low it reminded 
Newt Lee of a lightning bug. Details— a boiler and toilet on one side, the 
storage shed on the other— emerged as indefinite, ghostlike masses. Intensi- 
fying the eerie gloom was the almost stifling odor. Over the years, so many 
tons of sawdust and parings had been swept down here from the manufac- 
turing departments above that, like a cavernous pencil sharpener, the 
chamber reeked of cedar and lead. 

Though the men from headquarters never admitted they were frightened 
by this veritable tomb, they were surely unsettled— and that, too, was at first 
a factor. After all, they'd been rousted from the dull and sleepy station house 
and raced through the empty predawn streets at a 40-mile-per-hour clip. 
Newt Lee had met them at the building's front door, ushered them across the 
lobby and pointed to the scuttle hole. After clambering, one by one, into inky 
blackness, the men had proceeded blindly— the only sound was the "crunch 
crunch" of shoes striking the shavings-and-coal-slag-carpeted soil— until 
the Negro, who toted a smoky lantern, had brought them to a halt with the 
warning: "Look out, white folks, you'll step on her." And they might have. As 
Anderson subsequently remarked, "I did not see the body until I reached it." 

The officers ascertained the girl's color with surprising ease. Anderson 
simply lowered one of her stockings: milky thigh, milky calf. She was white. 
Based on the signs of a scuffle near the body, the men speculated that the 
girl's slayer had pinned her face against the ground where, as she'd gasped 
for breath, the grinds and ashes that were everywhere had adhered to her 
skin, pitting and tarring it. As for the obvious question— how had Newt Lee 
known she was not black— the officers initially didn't pursue it, for in deter- 
mining the victim's race, they discovered lurid evidence suggesting that 
another crime had preceded the murder. 

While examining the girl's legs, Anderson noticed that the belts attach- 
ing corset to garters were unfastened and that her underpants had been 
ripped up the crotch. Sergeant Brown, in language that would prove too 
graphic for the newspapers, subsequently described what the men saw: "By 
raising the skirt a bit, you could see in between the mouth of the vagina, 
close to the privates, and it had blood on it and blood on the drawers ... It 
would flow on its own accord . . . You could see it run from her stomach, 
this blood coming from her privates." 

To everyone clustered around the corpse, the significance of the crimson 
discharge was self-evident. The girl, in the euphemistic terminology of the 
age, had been "outraged" or "criminally assaulted." And this is how it would 
initially be reported, yet the last word on the subject of whether she had 



20 AND THE DEAD SHALL RISE 

been raped— whether she had, in fact, been mutilated— would not be 
uttered for a long time, if ever. 

So far as the officers could decipher the language of the dead, the victim 
had spoken. After making a couple of last assessments— icy hands and stiff- 
ening joints indicated she had evidently expired hours earlier— the men 
began combing the basement for clues. 

Taking into account the group's makeup, the search was surprisingly 
thorough. Though Sergeant Brown, 49, was a twenty-year veteran of the 
Atlanta Police; Call Officer Anderson, 3 1 , was a ten-year man; and Sergeant 
L. S. Dobbs, another 49-year-old, also had two decades under his belt, the 
others were civilians. W. W. "Boots" Rogers— an erstwhile Fulton County 
officer, future bailiff and full-time swell— was along merely because he'd 
chauffeured the party to the scene. And as for a young Atlanta Constitution 
reporter named Britt Craig, he was there, according to his account, because 
he'd been waiting at headquarters for a ride home; but, according to all 
others, he'd been passed out drunk in Boots's machine. 

The first item these men found was the victim's missing shoe poking out 
of a garbage pile near the boiler. Next, they located a bloodstained hand- 
kerchief several feet behind the body. Then, at the very rear of the cellar, up 
a gently inclined service ramp, they noticed that a sliding wooden door 
opening onto an alley had been tampered with. Though the door was 
closed, an iron staple had been pried from it, rendering the hasp and lock 
useless. Finally, they spotted a trail leading back from the elevator, suggest- 
ing that the remains had been dragged the length of the basement. 

The most significant discoveries, however, were made almost literally 
under the dead girl's nose. It was there that Sergeant Dobbs, using a cane to 
rake through the rubbish, dug up the first of two bewildering messages. 
Eventually, the "murder notes," as they'd come to be known, would be 
judged the case's most enigmatic pieces of evidence. But on this Sunday 
morning, they did no more than focus suspicion on Newt Lee. 

After ruminating a minute on the first of the notes— which was scrawled 
on a sheet of lined white paper that had been detached from a gummed 
book lying nearby— Dobbs started to read aloud: 

he said he wood love me land down play like the night witch did it but that 
long tall black negro did boy his slef 

Yet before the sergeant could finish reciting this gumbo— in fact, just as he 
pronounced the words "night witch"— Lee blurted something out. Later, 
Newt would contend he said only that someone was trying to "put it off on" 
him, but the officers would remember differently, claiming he declared: 
"White folks, that's me." 



LOOK OUT, WHITE FOLKS 21 

A few minutes after Lee's outburst, Sergeant Dobbs found the other 
note. This one, which also had been buried in the refuse near the dead girl's 
head, was jotted across a yellow National Pencil Co. order sheet atop which 
was printed the plant address and phone number and blank lines for date 
and invoice information. Like its counterpart, the second communique 
seemed to implicate Newt: 

mam that negro hire down here did this i went to make water and he push 
me down that hole a long tall negro black that hoo it wase long sleam tall 
negro i wright while play with me 

Up to this point, the officers had held their doubts about Lee in check. 
The Negro— who was in his mid-sos and thus born into slavery— had com- 
ported himself with the requisite docility and humility. As one writer would 
subsequently describe him: "Lee [is] a black, ignorant, corn-field, pot- 
likker-f ed darky. His head is flat as a ballroom floor. His big frame is slightly 
bent, not from weakness but from the natural laziness of his type. [He] is 
beyond doubt a white man's nigger." Accordingly, the men had patronized 
the night watchman. But once the notes were aired, Dobbs immediately 
accused him of committing the crime. 

"You did this or you know who did it," the sergeant charged. 

Lee, though he'd begun to shake, denied any connection with the murder. 
Then, with the officers surrounding him, he told his story, one he repeated 
without substantive variation several days later at the coroner's inquest: 

[At] almost three o'clock ... I wanted to go into the basement on my 
rounds. So ... I went down the ladder and went back to the toilet. I set the 
lantern on the floor against the side of the toilet. I came out of the toilet 
and stepped up a few feet. I don't know just how far. I looked to see if the 
back door was all right and to see if there was any fire [a much dreaded 
hazard at the factory] in the basement. Then I saw the body. I thought it 
was something some devilish boys had put there to scare me. I went over 
and saw it was a body and I got scared. Then I called the police. 

Though Lee's narrative seemed believable, and while in it he managed to 
explain how he'd determined the girl was white (her hair was simply too 
straight to belong to any Negress), he did not satisfy the officers. To begin 
with, he swore that when he saw the victim, she was lying faceup, not down, 
as when the men arrived. Moreover, he couldn't say anything to persuade 
them that his response to the initial note wasn't incriminating. Then there 
was the undeniable fact that, like the "black negro" alluded to in each mis- 
sive, he was ebony-complected. Finally, regardless of what he said, he was 



22 AND THE DEAD SHALL RISE 

still a colored man in a filthy cellar where a white girl lay dead and bleeding 
from between the legs— which was reason enough for the police to hand- 
cuff him and lead him away. 



With the arrest of Newt Lee, the officers repaired to the factory's second- 
floor offices and telephoned Chief of Detectives Newport A. Lanford, who 
in turn alerted two of his best men, John Black and John Starnes. Then they 
notified Bloomfield's Funeral Home, just a few blocks away on Pryor 
Street, and in due course the undertaker arrived. Following a hasty exami- 
nation, Will Gheesling placed the remains in his wicker basket and carried 
them out the back door to the alley, where his hearse was waiting. Soon 
thereafter, Detective Starnes appeared on the scene and, during a tour of 
the basement, discovered more clues. First, in the trash pile where Sergeant 
Dobbs and company had found the missing shoe, he located a blue straw 
hat. Then, he noticed that the sliding wood door was covered with bloody 
fingerprints and that a metal pipe that had apparently been used as a crow- 
bar was leaning against a nearby wall. 



Even as the official investigation was beginning, an equally important task 
was in progress in the nearly deserted city room of the Atlanta Constitution. 

Regardless of the fact that he'd been delivered to his biggest scoop in 
a state of questionable sobriety, Britt Craig was not an alcoholic hack. 
Quite to the contrary, this 19-year-old son of a respected newspaper family 
(Craig's father edited a North Georgia weekly) was one of the Constitu- 
tion's rising stars. True, Craig wasn't going to win many awards for writing. 
His prose was marred by bad puns, and his accuracy was spotty. However, 
he possessed two highly valued attributes in newsmen: luck and pluck. 
Craig often came up with the stories his rivals didn't. Typical of the reporter 
was a stunt he pulled when assigned to cover the Salon du Bon Ton lingerie 
show at Atlanta's premier department store, Rich's. After sequestering 
himself in a cranny rigged with a strategically placed mirror above the mod- 
els' runway, he proceeded to spy on Mademoiselle Barboure's lace-frilled, 
bone-corseted beauties as they paraded before an otherwise exclusively 
female audience. " 'Figuratively' speaking," he enthused in the next day's 
editions, "there's not a greater show in town." Craig, in other words, was an 
ingenious scamp who habitually popped up in unlikely spots. 

Exactly what measures Craig took to get his story of the murder into a 
Sunday-morning extra aren't known, but the job couldn't have been easy. 
Not only did he have to pound out his piece, but he had to awaken editors 
and they in turn had to order pressmen back to work. However, there were 



LOOK OUT, WHITE FOLKS 23 

compelling reasons for such exertions, and they could be summed up in one 
name: William Randolph Hearst. Craig knew that if he didn't move quickly, 
the newshawks whom the press baron had imported to beef up the Atlanta 
Georgian would poach his exclusive, so he moved, and by 6:30 a.m., the 
Constitution's special edition was on the streets. In length, Britt's account 
was actually modest— a boxed page-one item played next to a report on the 
Metropolitan Opera's triumphant grand finale. (The paper buried the Con- 
federate Memorial Day chestnut inside.) Yet in impact, it was enormous. 
Here was the germ of the tale— a girl found dead in the bowels of a child- 
labor factory— that would set the believers in Atlanta's past against the 
apostles of its future. 



That the news reached the two Atlanta families it would most directly affect 
before vendors began hawking the Constitution's extra was due in large 
part to the efforts of Boots Rogers. 

As it so happened, Rogers had a 16-year-old sister-in-law named Grace 
Hicks who worked at the pencil factory. While the detectives had been sur- 
veying the crime scene and Britt Craig had been writing his story, Boots had 
sped to Grace's home on McDonough Boulevard south of town, fetched 
her and raced to Bloomfield's. There, the Hicks girl identified the victim as 
Mary Phagan. Uncertain how to contact Mary's parents, Boots's sister-in- 
law then called a mutual friend, 16-year-old Helen Ferguson, who worked 
at the plant and lived in Bellwood. Young Helen had been close to Mary, so 
close, in fact, that she knew the girl's stepfather— unlike the hero of the 
poem "My Pa"— could not afford a telephone. She would have to carry the 
sad message to the modest frame house at 146 Lindsay Street herself. 

Ever since her daughter failed to appear for Saturday supper, Fannie 
Coleman had been racked with worry. Around seven that evening, her hus- 
band journeyed into the city, hoping that Mary had lost herself at the 
movies. For nearly three hours, John W. Coleman stood at the edge of the 
Bijou lobby, examining every face, failing to spot the one he so desperately 
sought. Around ten, he returned home, but he ventured right back out, 
now knocking on the neighbors' doors. The new prayer was that the girl, 
who'd planned to take the trolley to Marietta on Sunday to visit her 
country cousins, had, on a whim, left early. If so, she probably would have 
called one of the several Bellwood families who allowed the clan to use their 
phones. Yet, of course, no one had heard a thing. The police, when eventually 
contacted, were also still in the dark. With nowhere to turn,the couple had 
done what anxious parents do— they'd waited up. At daybreak, Helen Fer- 
guson appeared, spoke but a sentence and Fannie Coleman— widowed 
before Mary's birth and now bereft of the child William Joshua Phagan 



24 AND THE DEAD SHALL RISE 

never knew— collapsed. The family physician would soon be summoned to 
administer a sedative. 



Even as word of their loss was reaching John and Fannie Coleman, the 
indefatigable Boots Rogers was barreling to a halt in front of the ash-green, 
two-story East Georgia Avenue home where Leo and Lucille Frank lived 
with Lucille's parents. Unlike at the dead girl's house, where the ensuing 
tableau of sorrow and lamentation, no matter how searing, was predictable, 
the scene that unfolded here was ambiguous and open to wildly subjective 
interpretations. 

Accompanying Boots was Detective John Black. At 40, Black was big and 
bearish with suety jowls, a slab of a nose and rheumy eyes. Rarely seen with- 
out a porkpie hat he wore pushed far back on his head, he more closely 
resembled a railroad dick than a celebrated detective, and until four years 
earlier, he had worked as a cooper at the Atlanta Brewing and Ice Company. 
But appearances aside, Black was a bulldog of an investigator who'd already 
made a reputation for himself by solving a couple of headline-making cases 
and sending several men to the gallows. Suspicious by nature, he was the 
instinctive sort, and this morning, his instincts told him something was 
wrong. 

To say that Black had a hunch about Leo Frank is putting it too strongly, 
but ever since he and his colleague John Starnes had debriefed the respond- 
ing officers back at the pencil plant around 5:30, he had entertained doubts. 
What piqued his curiosity wasn't anything the factory superintendent had 
done but something the men said he hadn't done. During the flurry of tele- 
phone activity following Newt Lee's arrest, an operator had connected Call 
Officer Anderson to Frank's home. For what had seemed like an eternity, 
the policeman remained on the line waiting for someone to pick up. Noth- 
ing. And that was not the first call to the superintendent's residence that 
had gone unanswered this morning. According to the night watchman, after 
he'd located the body, he, too, had tried and failed to reach Frank. In 
marked contrast, the men had experienced no difficulties raising such com- 
pany officials as the majority stockholder, Sig Montag. 

Admittedly, not picking up the phone was no offense, and besides, John 
Black believed old Newt was as guilty as he was dusky. Yet there was 
enough here to convince the detective to approach Leo Frank warily and to 
wait for the right moment before unveiling a critical bit of intelligence. By 
day's end, the name Mary Phagan would be on a thousand tongues, but 
before it became too widely circulated, the investigator wanted to see how 
one man in particular responded upon hearing it. 

When Black rang the Seligs' bell, Lucille Frank, wearing a heavy blue 



LOOK OUT, WHITE FOLKS 2$ 

housecoat, appeared and ushered the detective and Boots into the parlor. 
Her husband, she said, was still getting dressed but would be right down. 

For five or six minutes— the amount of time that had passed since 
he had answered the phone— Leo Frank had known that a policeman 
was coming to see him. The prospect disconcerted him, but then, anyone 
else who'd received the wake-up call John Starnes had given the factory 
superintendent might have been disconcerted. At 50, Starnes was widely 
regarded as the detective department's most "immaculate attache." Slen- 
der, stern-faced, mustachioed and usually clad in a smart suit and bowler, he 
could have passed as the head teller at a downtown bank. Generally, 
Starnes was "suave and polite," yet this morning when speaking to Frank, 
he had been abrupt and evasive, for like Black, he was aware of the earlier 
effort to contact the factory superintendent, and it didn't sit well with 
him. While specific aspects of the detective's conversation with Frank 
would subsequently be debated, both parties were in accord as to its basic 
drift: 

"Is this Mr. Frank, superintendent of the National Pencil Company?" 
Starnes had begun. 
"Yes, sir." 

"I want you to come down to the factory right away." 
"What's the trouble? Has there been a fire?" 
"No, a tragedy," Starnes had replied vaguely. "I'll send a car for you." 

John Black and Boots Rogers had been waiting only a minute or two when 
Frank entered the room through a portiere that separated the front of the 
house from a hall linking it to both the kitchen and a staircase that led 
to the second floor. By all accounts, the factory superintendent was in an 
agitated state when he greeted his visitors. Dressed in a freshly pressed 
pleated shirt, blue trousers and suspenders (the only missing pieces were 
collar and tie), he paced restlessly across the parlor, wringing his hands 
and firing questions so fast that he apparently didn't leave Black time to 
answer: "Has anything happened at the factory? . . . Did the night watch- 
man report anything to you? ... I dreamt I heard the phone ring around 
four o'clock." 

Evidently, Black's reply to this barrage was a curt "Mr. Frank, you had 
better put your clothes on, and let us go to the factory." Subsequently, the 
detective would remember it this way: 

His voice was hoarse and trembling and nervous and excited. He looked to 
me like he was pale ... He seemed to be nervous in handling his collar. He 
could not get his tie tied, and talked very rapid. 



26 AND THE DEAD SHALL RISE 

Boots Rogers would echo these impressions: 

Mr. Frank seemed to be extremely nervous. His questions were jumpy . . . 
His voice was a refined voice . . . kind of lady-like ... He was rubbing his 
hands ... He seemed to be excited. 

Yes, no one challenged the fact that Leo Frank was upset this Sunday 
morning, but as to what that meant and whether Black, and earlier Starnes, 
had anything to do with provoking it was another matter. From almost any 
perspective, these fiercely unforthcoming men couldn't have helped but 
inspire anxiety. They were obstinately mute. Later, Frank would recollect: 

I asked them what the trouble was and the man who I afterwards found 
out was Detective Black hung his head and didn't say anything. 

In short, one man rattled on, the other two kept quiet. One man gestured 
and gesticulated, the other two hunkered down. Only once— when some- 
one suggested a cup of coffee to relax them all— did there seem to be a 
chance for the parties to talk to instead of past each other. Yet far from 
achieving its desired effect, this idea gave rise to an enduring misunder- 
standing. The disagreement hinged on who actually proposed the plan. 
According to Lucille Frank and Boots, it was Lucille, but according to 
Black, it was Leo. Innocuous as this seems, the detective's version, which 
would gain the greater credence, was eventually cited as evidence of an 
attempt on the factory superintendent's part to avoid the inevitable. And as 
for the coffee itself, none was ever served, as Black argued that Frank 
needed something stronger. "I think a drink of whisky would do him good," 
he cracked, sending Lucille scurrying to find a bottle. Eventually, she came 
back empty-handed, saying her father, who suffered from indigestion, had 
polished off the last of their liquor the previous night. 

Black and Rogers had been at the Franks' home for some ten minutes, 
and as yet had offered no satisfactory explanation for why they'd come. As 
it turned out, their reticence was about to end, but when and where they 
told Frank that a girl had been found murdered in the factory basement and 
that her name was Mary Phagan became grounds for yet another dispute. 
As Frank would subsequently put it: 

Now at this point . . . Mr. Rogers and Mr. Black differ with me on the place 
where the conversation occurred— I say, to the best of my recollection, it 
occurred right there in the house in front of my wife; they say it occurred 
just as I left the house in the automobile; but be that as it may, this is the 
conversation: They asked me did I know Mary Phagan, and I told them 



LOOK OUT, WHITE FOLKS 27 

I didn't. They then said to me, "Didn't a little girl with long hair hang- 
ing down her back come up to your office yesterday sometime for her 
money— a little girl who works in the tipping plant?" I says, "Yes, I do 
remember such a girl coming up to my office, that worked in the tipping 
room, but I didn't know her name was Mary Phagan" . . . and I finished 
dressing, and as they had said they would bring me right away back, I 
didn't have breakfast, but went right on with them in the automobile. 

Though Rogers and Black would indeed differ with Frank— later, Boots 
vividly recalled that Frank and Black were sitting in his backseat when the 
detective broke the news, adding that Frank then offered up a worrisomely 
complete list of reasons why he couldn't have known Mary Phagan — the dis- 
agreement ultimately did not bear out Black's worst suspicion, for it wasn't 
as if the superintendent betrayed a knowledge of the child's identity before 
the detective mentioned it. However, the fact that the men could not later 
agree on the place where the conversation occurred suggests that by the 
time they departed for town, they weren't seeing anything in the same light. 



Bloomfield's mortuary was a rambling one-story frame building halfway 
between the state capitol and the factory. This was the group's first stop. 
Will Gheesling met the men in his reception room, then led them down a 
long passageway. After opening a door at the end of the corridor, the under- 
taker briefly disappeared into darkness, leaving Boots and Frank at the 
threshold, with Black just behind them and a wild-haired man who'd 
entered the establishment in the party's wake behind Black. A second 
passed, Gheesling switched on a brilliant electric lamp and there, laid out 
on a circular cooling table, was Mary Phagan's body, her face turned toward 
a far wall. To make sure everyone could see, Gheesling pulled down the 
sheet that covered the corpse, then slipped his hands beneath the girl's 
head, lifting it up like a battle trophy. Which gave rise to a critical disagree- 
ment: Did Frank look, or did he recoil in revulsion and guilty fear? 

John Black and Boots Rogers were positive that the plant manager 
turned away. As Boots would later recollect: 

Mr. Gheesling caught the face of the dead girl and turned it over towards 
me. I looked then to see if anybody followed me and I saw Mr. Frank step 
from outside of the door into what I thought was a closet. There was a little 
single bed in there. I didn't see Frank look at the corpse. I don't remember 
that Mr. Frank ever followed me in this room ... he could not have seen 
her face because it was lying over towards the wall . . . His general manner 
made me think that he was nervous. 



28 AND THE DEAD SHALL RISE 

Not surprisingly, Frank would subsequently disagree: 

I stood right in the door, leaning up against the right facing . . . Mr. 
Gheesling . . . removed the sheet which was covering the body, and took 
the head in his hands, turned it over, put his finger exactly where the 
wound in the left side of the head was located— put his finger right on it; I 
noticed the hands and arms of the little girl were very dirty— blue and 
ground with dirt and cinders, the nostrils and mouth— the mouth being 
open— nostrils and mouth just full of sawdust and swollen, and there was a 
deep scratch over the left eye on the forehead; about the neck there was 
twine . . . and also a piece of white rag. After looking at the body, I identi- 
fied that little girl as the one that had been up shortly after noon the day 
previous and got her money from me. 

Gheesling, contending that his position behind the body blocked his sight 
line, claimed he couldn't tell what Leo Frank did, but there was one other 
impartial observer— the wild-haired man who'd followed the party into the 
funeral home. This was the Atlanta Journal's 20-year-old police reporter, 
Harold W. Ross. The hard-drinking, chain-smoking son of a Boulder, Col- 
orado, mining engineer, Ross had dropped out of high school his sopho- 
more year to take a reporting job on the Salt Lake City Tribune. Before 
arriving in Atlanta, he'd gypsied across the country, hopping from newspa- 
per to newspaper, acquiring an education and a skepticism that generally 
doesn't come until far later in life. Although he was already experimenting 
with the first-person plural style that would one day become the talk of 
another town, he wasn't a graceful writer, yet he did pay exceptional atten- 
tion to detail. Truth be told, he could be tediously precise. In short, Ross was 
already very much the man who in 1925 would found The New Yorker 

On this early morning, Ross— whose city editor had read the Constitu- 
tion's extra— was charged with the unenviable job of coming up with a new 
angle the Journal could get into Monday's editions. Thus he'd raced to 
Bloomfield's. Later, he'd recall that he "saw Leo M. Frank as he looked 
upon the mutilated and abused body of Mary Phagan in the morgue three 
hours after her remains had been found." 

Not that Ross was the final authority on the matter. No, the conflicting 
accounts remained unreconciled, although the police version would gain 
wider acceptance and have a greater impact. To John Black, Frank was sim- 
ply more shaken than the admittedly upsetting circumstances warranted. 



By 7:45 a.m. Sunday— the hour Boots and Black arrived at the National 
Pencil Factory with Frank— a crowd had gathered out front, but the men 



LOOK OUT, WHITE FOLKS 29 

passed quickly through the onlookers. At the door, they were met by 47- 
year-old N. V. Darley, a coworker the superintendent had asked his wife to 
call. In charge of plant personnel, Darley was one of Frank's closest associ- 
ates. The party thus complete, the men continued into the lobby, ascended a 
set of stairs, then disappeared through another door. 

Frank's office occupied a front corner of the building's second floor, adja- 
cent to the packing room. A hundred feet or so farther back, through a set of 
swinging metal doors, was the plating department. The metal department— 
where spare parts were lathed, eraser tips fabricated, sheet brass stored and 
Mary Phagan had worked— was also on this level. Yet despite their proxim- 
ity to these operations, the superintendent's quarters were protected from 
the dirt and din by an elevator lobby and an anteroom dominated by a mas- 
sive cast-iron safe and staffed on weekdays by runners and a secretary. 

It was in the anteroom that the men— now joined by Detective Starnes 
and a handcuffed Newt Lee— set up operations. The first order of business 
was to make sure that Mary Phagan was indeed the girl the superintendent 
had paid the previous day. This fact, Frank declared, could be easily deter- 
mined, and after working the safe combination and extracting the factory 
payroll ledger, he opened the book and ran a finger down a page until he 
stopped and said: "Yes, Mary Phagan worked here. She was here yesterday 
to get her pay. I will tell you about the exact time she left. My stenographer 
left about twelve o'clock, and a few minutes after she left the office boy left 
and then Mary came in and got her money and left." 

Next, someone suggested that Frank should see the spot where the body 
had been found. Apparently, the factory superintendent chose this moment 
to again request a cup of coffee, in Black's mind confirmation that he was 
stalling, but the detectives said there was no time, so the party trooped to 
the elevator lobby, a shabby room that was the plant's crossroads. On one 
side of this L-shaped space, the lift stopped. On another, stairs led down to 
the street level and up to the manufacturing floors. Also, the time clocks 
that employees had to punch twice daily were here, as was the cashier's 
window where on Fridays and Saturdays pay envelopes were distributed. 
And not only money flowed from this chamber. Mounted on a far wall was 
the fuse box that controlled the building's power. Since electricity was shut 
off on Sundays, Frank needed to throw the switch inside the box if the 
group was to take the elevator to the basement. 

Frank experienced no trouble performing this task— however, when one 
of the men asked him why the fuse box wasn't kept locked, he launched 
into a wordy explanation involving insurance rates and a recent edict from 
the fire inspector that struck Starnes and Black as overly detailed. 

The lift itself was a cantankerous contraption primarily used to transport 
freight. Once the motor coughed to life, the passengers filed on, and Frank 



30 AND THE DEAD SHALL RISE 

gave a tug at a steel cable that dangled from the top of the car and served as 
a stop and start button, but the cable wouldn't budge. Later, he'd recall: 

It seemed to be caught, and I couldn't move it ... it seemed like the chain 
which runs down in the basement had slipped a cog and gotten out of gear 
and needed somebody to force it back. 

To the detectives, it appeared as if Frank— whose exertions were painful 
to witness— was too upset to operate the device. As even the sympathetic 
N. V. Darley would subsequently remember: 

When we started down the elevator, Mr. Frank was nervous, shaking all 
over. I can't say positively as to whether his whole body was shaking or 
not, but he was shaking. 

Finally, Darley— who was a heavyset sort and, as Frank said, "a great 
deal stronger"— grabbed the cable, gave it a swift yank, and the men were 
on their way, dropping into the basement where the car settled firmly 
and, to everyone's disgust, malodorously, against the ground. Indeed, the 
instant the lift hit bottom, a fresh, powerful stench wafted up from be- 
neath the men. It was a stench they would never forget. Yet any chance to 
submit the offending substance to a scientific examination had been squan- 
dered hours earlier when a 35-year-old patrolman had failed to collect it as 
evidence. 

Around daybreak, R. M. Lassiter, whose beat included Forsyth Street, 
had given the plant cellar a complete once-over. The first thing he'd spotted 
was the trail running from a point just in front of the elevator pit all the way 
back to the area where the child had been found. Like the responding offi- 
cers, Lassiter believed that the body— which aside from the head contu- 
sions was covered with abrasions on its left arm and leg— had been dragged 
over the path. Lassiter's other discoveries, however, didn't avail themselves 
of easy analysis. In the elevator pit itself —which like everything else in the 
basement was full of waste and debris— he'd turned up a trove of items that 
simply did not belong together. To wit: the victim's black umbrella, a big 
ball of red knitting twine and "a fresh mound of human excrement that 
looked like someone had dumped naturally." Lassiter had removed the first 
two articles but left the third in its place, and it was this pile that the car car- 
rying Frank and the detectives mashed, unleashing the noxious scent. 

Other than acknowledging the fact that someone had stunk up the place, 
the men who first breathed in the aroma paid no attention to, nor were they 
curious about, its source, proceeding, instead, directly toward the back of 
the cellar— in the process further trampling the potentially telltale trail, 



LOOK OUT, WHITE FOLKS 31 

destroying any opportunity to take footprints later. After examining the 
spot where the body had been located, Frank accompanied the officers to 
various other sites where clues had been discovered. Upon seeing how the 
back door had been jimmied, the superintendent expressed concern that if 
the opening wasn't secured, someone could break in, so he and Darley 
zipped upstairs, grabbed hammer and nails, then zipped back. It was at 
this juncture that Frank removed his jacket and for the benefit of Darley— 
who in the past had chided him regarding his penchant for brown suits— 
mentioned the fact that for a change, he was in blue. While intended to 
break the tension, the line only raised eyebrows and was filed away by 
Black and Starnes, who wondered why Frank was calling attention to the 
fact. Yet this reaction was mild compared to that which greeted the superin- 
tendent's awkward effort to perform the rudimentary task at hand. Appar- 
ently, he could not make the hammer hit the nails, and once again, Darley 
had to take over. 

The door sealed up, the men returned to the second-floor offices, where 
they found Atlanta's chief of detectives waiting. At 51, Newport A. Lanford 
was stout and hale with a great graying walrus mustache. He had been with 
the force for 25 years, and though his florid complexion and too-puffy eyes 
hinted at base appetites and dubious connections, he was nonetheless a fix- 
ture, a harrumphingly reassuring presence. 

With Lanford on the scene, anxieties began to ease. During the course of 
the next twenty minutes, Frank and Darley toured the detective chief 
around the factory, spending much of that time on the third and fourth 
floors amidst the German-engineered equipment that transformed rough 
cedar slats into sleek writing implements. The men also peered into dressing 
rooms, storage bins and the second-story metal department where Mary 
Phagan had toiled. They saw nothing out of the ordinary. Their last stop was 
at the time clocks. Here, Black and Starnes— with Newt Lee in tow— 
rejoined the party. The night watchman was required as one of his duties to 
punch in every half hour of his shift, indicating the completion of each 
round. After obtaining the Negro's time slip from the night just ended, 
Frank eyeballed it and proclaimed everything in order. Between 6 p.m., 
when Lee had reported to work, and 3 a.m., he'd hit all his marks. This fact 
agreed upon, Frank initialed Lee's slip, writing "Removed 8:26" across it. 
The superintendent then placed the slip in the safe, shut the door and 
turned the lock. 

For now, the detectives were satisfied and only wanted Frank to do them 
the last favor of examining the murder notes, which had been taken to the 
station house. So after walking back out to Forsyth Street, the men once 
again piled into Boots's car— Black, Starnes and Lee riding in back; Darley 
and Frank up front with Frank perched on his friend's lap— and were soon 



32 AND THE DEAD SHALL RISE 

racing east on Decatur Street toward headquarters. The trip was uneventful 
save for the fact that to a soul, everyone noticed the superintendent could 
not stop shivering. 

At the station house, the officers quickly ascertained that the murder 
notes were not available for examination. As a critic of the Atlanta police 
would later phrase it, they had been "borrowed," apparently by the Jour- 
nal's Harold Ross, who during his time in town acquired a reputation for 
being light-fingered around newsworthy documents. That the authorities let 
the notes— as yet undusted for fingerprints or examined by any experts— 
out of their hands was, of course, a disaster. Yet in Lanford's office Sunday, 
no one voiced any concern about the missing evidence, and after a brief and 
apparently cordial discussion, the detective chief informed the factory 
superintendent that he was free to go. 

From the station house, Frank— joined by Darley— walked back to 
Bloomfield's, evidently to see the body, but Dr. J. W. Hurt, the county physi- 
cian, was conducting his postmortem, so the men proceeded on to the Mon- 
tag Paper Company, which was in the general vicinity, hoping to find Mister 
Sig. But Montag had not come in. So Frank caught a trolley car for the 
Washington Street section he and his superior both called home. After stop- 
ping at Montag's residence and talking to him briefly, Frank returned to 
East Georgia Avenue. It was 10:45 AM - an d at l ast he got his cup of coffee. 



Despite the fact that Chief Lanford and his men were discomfited by 
Leo Frank's twitchy behavior, as of Sunday morning they did not regard 
the superintendent as a suspect. In fact, the detectives— their ranks now 
swelled by such local legends as "two-fisted" Pat Campbell, a 46-year-old 
son of Castle Cam, Donegal County, Ireland— believed that the murder of 
Mary Phagan was a "Negro crime" and that the Negro who did it was Newt 
Lee. Buttressing this conviction was an experiment Sergeant L. S. Dobbs 
had conducted back at the factory. While his colleagues had been busy with 
Frank, Dobbs had dragooned a black man who worked at a Forsyth Street 
livery stable, ordered him to lie in the exact spot where the dead girl had 
been found and then instructed Lee to repeat the steps he'd taken that led 
to the discovery of the body. Thus the night watchman had again descended 
the ladder, walked to the toilet, squatted, placed his lantern at his feet and 
gazed into darkness. To Dobbs, the exercise confirmed what he'd thought 
from the start: the globe of Newt's light was so smudged that "unless one 
looked directly at the body it could not have been seen from the toilet." 
Dobbs believed the night watchman was lying. 

All day Sunday, investigators incessantly grilled Lee. Yet even as the 
detectives worked Newt over, other angles began to develop, one predi- 



LOOK OUT, WHITE FOLKS 33 

cated on the notion that while a Negro may have committed the murder, it 
was at a white man's bidding. The event that inspired the officers to make 
this leap was the late-morning arrival of Edgar L. Sentell at Chief Lanford's 
office. A 2 1 -year-old grocery store clerk and longtime acquaintance of 
Mary Phagan, Sentell had read Britt Craig's story and believed himself to 
be in possession of a vital clue. Around 12:30 Saturday night, as he'd been 
walking home from work, he said he'd seen the "tired and angry" victim 
being shepherded along Forsyth Street by an erstwhile streetcar conductor 
named Arthur Mullinax. Though the part of town where Sentell claimed to 
have spotted the girl was dark, illuminated only by the intermittent lights of 
cheap fruit-and-water stands, the flickering flame of a peanut roaster here 
and there and the dull glow of the city lamps, he was certain that his eyes 
hadn't failed him, for he said that when he'd called out, "Hello, Mary," she 
had replied, "Hello, Edgar." 

Sentell's story so impressed the investigators that late Sunday evening 
an officer picked up the 24-year-old Mullinax at his girlfriend's house and 
brought him to headquarters. While Mullinax proclaimed his innocence, he 
was an excellent suspect. For one thing, he not only admitted having known 
Mary Phagan, he confessed he'd been enamored of her. The two had ap- 
peared in the Western Heights Baptist Church's 1912 Christmas production 
of Snow White, Mary playing the title role and Mullinax a blackface part. 
At the station house, Mullinax told a reporter: "I couldn't keep my eyes 
off her. She noticed it, and while I was standing near her, she remarked 
that I looked good with my face blacked. I turned to her and replied that 
T'd keep my face blacked all the time, then.' " Moreover, when Sentell ap- 
peared to identify Mullinax, he pointed an accusing finger at him and in the 
presence of a half-dozen policemen announced: "That's the man who was 
with the girl last night. There's not a doubt about it." With that, Mullinax, a 
doe-eyed cracker Casanova, was booked and jailed. The charge— suspicion 
of murder. 

While the detectives believed that in Lee and Mullinax they had two 
strong suspects, they were also looking into another possibility. Sunday 
afternoon, one E. S. Skipper appeared at headquarters to say that on Satur- 
day night he'd seen a girl answering the description of Mary Phagan walk- 
ing on a street near the pencil factory in the company of three young men. 
What attracted his attention, Skipper said, was that the girl "was reeling 
slightly, as though affected by drugs or narcotics, and was weeping." Soon, 
officers were scouring the city for the unidentified youths. 



Around three in the afternoon, Leo Frank returned to town to visit Bloom- 
field's. There, hundreds of mourners— the majority of them strangers who'd 



34 AND THE DEAD SHALL RISE 

read Britt Craig's scoop— had congregated. In fact, the line snaked around 
the block. Eventually, ten thousand people (nearly double the number who 
had attended the Metropolitan Opera's final performance) would file by. 
Many, of course, came to grieve for Mary Phagan, but more came to peer 
into the open white casket in which the victim reposed, her throat— despite 
Gheesling's efforts— necklaced by the violet indentation of the noose. 

Frank stayed at the funeral home long enough to pay his respects and 
speak to a few employees— among them Darley and the factory office boy, 
Alonzo Mann— then proceeded to headquarters. The Journal had returned 
the murder notes, and the detectives wanted Frank to look at them. Appar- 
ently, the superintendent could make nothing of them, so he dropped back 
by the plant, where another crowd had gathered. 

Yet for most of the day's dwindling hours, Frank sought refuge in 
Atlanta's Jewish enclave. First, he and Lucille dropped by the Carl Wolf- 
sheimers' and talked about the murder with a group of friends who'd 
assembled for a postopera party, among them the couple's Athens, Georgia, 
in-laws, Julian and Philip Michael; Virginia Silverman; May Lou Liebman; 
and Julian Loeb. Then it was on to Alexander Marcus's, and from there, to 
Charlie Ursenbach's, where such familiar faces as Harold Marcus and Ben 
Wiseberg were present. Come dusk, Frank found himself alone and strolled 
through the verdant neighborhood. Down Bass, up Washington and over to 
Georgia he walked, all the while keeping the spires of the Hebrew Orphan's 
Home in view. Later at home— where the Seligs were hosting a bridge party 
attended by the Lippmans, the Wolfsheimers and the Strauses— Frank 
caught up with the morning's newspapers. As cards were shuffled and rub- 
bers dealt, he sat to the side and read. In Europe, Austria was preparing to 
invade Montenegro, while in New York, medical researchers were working 
on a tuberculosis serum. Locally, sports fans were overjoyed that after a 
weeklong holdout, Ty Cobb— the Georgia Peach— had signed a $12,500 
contract with the Detroit Tigers. Immersed in such accounts of events great 
and small, Frank betrayed no hint of disquiet within, no apprehension 
regarding the storm gathering without. 



THREE 



O: 



all the images Atlantans could have awakened to that Monday 
| morning, few could have been more ghoulishly titillating than the 
one of Mary Phagan stripped down the center of the Atlanta Geor- 
gian's front page. As McLellan Smith, in 1913 a Hearst reporter, would 
recall years later: "We sent a photographer to the undertaker's and got a 
picture of her on the slab." The Georgian's death likeness was not, however, 
everything it seemed to be. Or, to put it precisely, it was more than it 
seemed to be. One didn't have to scrutinize the shot too closely to notice 
the disconcerting fact that its deceased subject was holding her skirts in her 
left hand as if quite alive and about to curtsy. Then there was the coy cap- 
tion: "Photograph of Mary Phagan showing her in street dress." The image, 
in short, was a composite fabricated by cutting the head off the shot of the 
victim and pasting it atop a shot of another, more animate girl's torso. In 
any of the dozen or so American metropolises whose citizens were used to 
the excesses of Hearst journalism, such a production would not have raised 
the collective pulse rate. Indeed, at the New York Journal, Hearst's flam- 
boyant flagship, the doctored morgue mug shot was a speciality of the 
house. But in Atlanta, where Hearst had only recently set up shop, this sort 
of thing had never before been seen, and folks couldn't plunk down their 
two cents fast enough. 

Monday's Georgian devoted five pages to the murder. For starters, the 
sheet made a spectacle of the Phagan family's grief. Beneath such headlines 
as mrs. coleman prostrated by child's death, various members of the 
clan spoke searingly of their loss. Lamented the poor thing's uncle, D. R. 
Benton of Marietta: "She was just a little playful girl without a bad thought 
in her mind, and she has been made victim of the blackest crime that can be 
perpetuated [sic]. 99 And her mother added: "The poor baby. If you only 
could have seen her. She looked so beautiful and so young and so bright! 
She said she was only going to see the parade before she came home. And 
now look!" Fannie Coleman then invoked the issue of child labor, making 
her daughter a martyr to the cause the Georgian had been flogging for 
months. "I'm so sorry for other young girls working everywhere," she was 
quoted as saying. "To think that they're all open to the same things and 



36 AND THE DEAD SHALL RISE 

there is nothing to protect them." From a woman so distraught that on Sun- 
day morning she'd been sedated, it seemed an improbable utterance, but in 
the incantatory realm of Hearst journalism, if a dead girl could be depicted 
holding her skirts, a mourning mother could serve as an editorial mouth- 
piece. 

Exploding amidst these lachrymose accounts were the sharper reports of 
other Hearst ordnance, neighbors of slain girl cry for vengeance, 
boomed one headline, girl's grandfather vows vengeance, boomed 
another. The desire for retribution conveyed by such headlines was spelled 
out in the texts they topped. One of the sternest blasts was delivered by a 
twelve-year-old playmate of the victim: "I'd help lynch the man that killed 
poor Mary," pledged Vera Epps. "If they'd let me, I'd like to hold the rope 
that choked him to death." Yet it was the patriarch, William Jackson Phagan 
(now returned from Alabama), who spoke most vehemently, and the re- 
porter the Georgian assigned to tell his story— a 23-year-old would-be 
Theodore Dreiser named Herbert Asbury— stirringly evoked the scene: 

Standing with bared head in the doorway of his Marietta home, with 
tears falling unheeded down his furrowed cheeks, W. J. Phagan cried to 
heaven for vengeance for the murder of his granddaughter, fourteen-year- 
old [sic] Mary Phagan, and vowed that he would not rest until the mur- 
derer had been brought to justice. 

In a silence unbroken save by the sound of his own sobs and the noise of 
the gently falling rain, the old man lifted his quavering voice in a passion- 
ate plea for the life of the wretch who had lured the little girl into the dark- 
ness of a deserted building and strangled her to death. It was an infinite 
grief— the grief of an old and broken man— that Mr. Phagan expressed 
when, with hands outspread imploringly, he invoked divine aid in bringing 
the murderer of the child to justice. 

"By the power of the living God," prayed the old man, his voice rising 
high and clear above the patter of the rain and the roar of a passing train, 
"I hope the murderer will be dealt with as he dealt with that innocent 
child. I hope his heart is torn with remorse in the measure that his victim 
suffered pain and shame; that he suffers as we who loved the child are suf- 
fering. No punishment is too great for the brute who foully murdered the 
sweetest and purest thing on earth— a young girl. Hanging cannot atone 
for the crime he has committed." 

Asbury's account pulsated with heartbreaking details. But in truth, it had 
been submitted to what was known at the Georgian as "a little laboratory 
work"— the facts had been improved upon. Years later, Asbury would con- 
fess his sins. Yes, he did speak to William Jackson Phagan, and yes, the 



EXTRA, EXTRA 37 

bereaved man did beseech the Lord, but in writing the piece, Asbury felt it 
lacked Hearstian punch. Which is why he invented the atmospherics. "It 
wasn't raining," Asbury admitted, "although it might well have been." 

One of the most sensational items to appear in Monday's Georgian— 
certainly one whose repercussions would reverberate powerfully during 
the coming days, influencing the initial direction of the investigation— was a 
two-column line drawing displayed prominently atop page two. Headlined 
"Who Is This Man?" the sketch depicted a tall, slender, black-haired 25- 
year-old wearing a straw boater, blue suit and tan shoes. Based on the 
description grocery store clerk Edgar L. Sentell had given the police Sun- 
day that resulted in the arrest of Arthur Mullinax, the illustration offered 
Atlantans a possible suspect, and notwithstanding the fact that Mullinax 
was behind bars, every slender, black-haired fellow in town now became the 
object of stares and whispers. 

The Georgian also offered the populace the incentive to take matters 
into its own hands. Festooned above Monday's front-page masthead was 
the banner: "$500 REWARD." This was the sum the Hearst organization 
said it would pay for "EXCLUSIVE Information Leading to the Arrest 
and Conviction of the Murderer." At a time when well-compensated At- 
lantans earned only $200 a month and most took home less (at ten cents an 
hour, Mary Phagan would have needed a year and a half to earn $500), the 
mention of such an extravagant figure was intoxicating. In effect, the 
bounty served to deputize the entire city, and by late Monday, the officers 
working the case would be spending more time following dubious tips than 
developing legitimate leads. 

Just how many extras the Georgian published Monday is disputed— 
surviving copies confirm at least eight, but estimates go as high as 20. (The 
New York Journal printed 40 extras the day after the sinking of the Ameri- 
can battleship Maine in the Havana harbor in February 1898.) Regardless, 
nearly every hour from 8:00 a.m. on, a new edition of the Georgian rolled 
off the presses at 20 East Alabama Street and within minutes was in the 
hands of newsboys: 

new strangling arrest, screamed the Afternoon Edition. 
arrested as girl's slayer, echoed the Home Edition. 

GANTT ARRESTED AS SLAYER OF GIRL, TELLS STORY TO GEORGIAN, 

promised the Night Extra, in a line that referred to a new suspect. 

By dark, Atlanta was awash in these extras— or pinks, as they were some- 
times called because their streamers were printed in scarlet ink that lent 
everything a sizzling urgency. Not since William Tecumseh Sherman had the 
city experienced such a bombardment. As Herbert Asbury would later 



38 AND THE DEAD SHALL RISE 

note: "Our paper was in modern parlance, a wow. It burst upon Atlanta like 
a bomb and upon the Constitution and Journal like the crack of doom." 



For proprietor William Randolph Hearst, Monday's Georgian was a com- 
bination fiftieth birthday and tenth wedding-anniversary present. That 
evening, Hearst and his wife celebrated both occasions with a dinner 
dance— the menus were engraved on a scroll of tin with a photograph of 
the couple on top— at their 30-room apartment (the largest in Manhattan) 
in the Clarendon Building at West End Avenue and Eighty-sixth Street. 
Among the 50 friends in attendance were Elbert H. Gary, the president of 
U.S. Steel, and Joseph Duveen, the art dealer who was helping Hearst 
acquire the treasures of Europe that would fill the castle he would soon 
build in San Simeon, California. Hearst's reaction to the gift his Atlanta edi- 
tors bestowed upon him on this occasion was undoubtedly favorable, 
for their handling of the Phagan murder was an homage to the master— 
himself. 

By 1913, America's journalistic wildcat was at the height of his power. 
His empire stretched from San Francisco (the Examiner) and Los Angeles 
(also the Examiner) on the West Coast to Boston (the American) and New 
York (the Journal) on the East with vital points (Chicago, Detroit, Balti- 
more) in between. 

At their best, the Hearst newspapers were vigorous trustbusters, news- 
print knights errant that jousted with the railroad and steel monopolies 
and championed the little man. They were also stylishly written, featuring 
the sort of syndicated stars (Ambrose Bierce, Damon Runyon) that only 
Hearst could afford. Moreover, the papers pioneered the use of bold head- 
lines and photography. The Chief, as the publisher was known, knew how to 
get readers' attention. 

At their worst, however, the Hearst newspapers encouraged reckless- 
ness. "In a strict sense," notes W. A. Swanberg in his tough-minded biogra- 
phy Citizen Hearst, they "were not newspapers at all. They were printed 
entertainment and excitement— bombs exploding, firecrackers popping, 
victims screaming, flags waving, cannons roaring, houris dancing, and 
smoke rising from the singed flesh of executed criminals." Deceit, gore, 
petty vendettas, self-aggrandizing bombast— all were ingredients in the 
formula. "To be a Hearst reporter," adds the biographer, "required talents 
unsought by sober journals— a lively imagination, a fictional sense that 
could touch up news stories with vivid glints, balanced by a subtle under- 
standing of how far one could go without being accused of fakery." 

The most infamous example of the Hearst style had, of course, occurred 
in 1898 when his martial vaporings kindled the Spanish- American War. 



EXTRA, EXTRA 39 

Motivated by a desire to score a circulation victory for the New York Jour- 
nal against the rival New York World, the Chief had let neither fact nor cau- 
tion stand in his way. After receiving a cable from Frederic Remington 
(ultimately remembered for his cowboy sculpture but at the time Hearst's 
man in Havana) telling him, "Everything is quiet. There is no trouble here. I 
wish to return," Hearst had imperially rejoined: "Please remain. You fur- 
nish the pictures and I'll furnish the war." And he had. After the sinking of 
the Maine, the Chief had ignored any evidence that the disaster might have 
been an accident, running out saber-rattling banner after saber-rattling 
banner. Typical was the double-deck headline atop a February 17 edition: 

THE WARSHIP MAINE WAS SPLIT IN TWO 
BY AN ENEMY'S SECRET INFERNAL MACHINE 

The Journal had pounded home the point until an initially cautious Presi- 
dent William McKinley ordered in the troops. In Swanberg's verdict, ren- 
dered sixty years after the fact, "Hearst's coverage of the Maine disaster 
still stands as the orgasmic acme of ruthless, truthless newspaper jingoism." 
The Chief, however, wasn't worried about history's judgment. For him the 
key point was this: Before hostilities started, the Journals circulation hov- 
ered at 800,000; afterward, it stood at 1,250,000. 

Though Hearst was in many ways to the American manor born— scion of 
a wealthy California family (his silver-mining father made his first fortune 
in the Comstock lode, his second at Anaconda); San Francisco-bred; 
Harvard-educated; initiated into journalism not as an ink-stained wretch 
but as proprietor of the going concern, the San Francisco Examiner, that 
his father gave him— he remained, oddly, an outsider. Most observers of 
the day contended that he was lonely, but more probably, his remove was 
the product of immense egocentricity, with its accompanying feeling of 
superiority. As with many such American originals, Hearst believed the 
only house where he could feel truly at home stood at 1600 Pennsylvania 
Avenue, and since 1900— when he'd used his papers to launch a run for the 
Democratic nomination— he'd been seeking the presidency. In the process, 
Hearst had proved himself to be a man of mutable loyalties. In 1908, 
rebuffed by the Democrats, he'd formed a third party (the Independent) 
and dictated a ticket beholden to himself. In 1912, he'd swung around to the 
Republicans, pursuing an endorsement from former president Theodore 
Roosevelt by offering the old Rough Rider the ultimate bully pulpit as 
columnist for the Hearst papers. Rejected by the GOP, Hearst had of late 
returned to the Democratic fold, his presidential yearnings unabated— 
which was why he'd acquired the Atlanta Georgian. 

Throughout Hearst's decade-long pursuit of the presidency, he'd courted 



40 AND THE DEAD SHALL RISE 

several powerful Georgians he believed could deliver the key to a Demo- 
cratic nomination— the Solid South. The first object of his blandishments 
was the firebrand Tom Watson. Not only did Hearst puff Watson's populist 
effusions in the New York Journal; his trusted adjutant, Arthur Brisbane, 
invited "the Sage" to Manhattan, took him to lunch at Delmonico's and 
offered him command of Hearst's new morning paper, the New York Amer- 
ican, at $10,000 a year. The Sage, however, would not leave Dixie, so the 
Chief's attentions drifted to John Temple Graves, the Georgian's founding 
editor and a Watson protege. Graves was only too happy to answer Hearst's 
call, and for the rest of his career he'd do his bidding, editing the American, 
running for vice president in 1908 on the Independent ticket and, in 1912, 
acting as his agent during negotiations to buy the Georgian. 

On February 5,1912, when William Randolph Hearst's purchase of the 
Georgian was announced, the paper seemed an unlikely vehicle for some- 
one who aspired to the highest office in the land. 

The Georgian had been launched a mere six years earlier by the real 
estate developer Fred Seely, yet despite its owner's profession, the sheet 
was anything but forward-looking. Under Graves's stewardship, the Geor- 
gian's editorial columns advocated reactionary populism while its news 
columns were often used to cast stones at such local powers as Coca-Cola. 
In a boomtown like Atlanta, these positions ran counter to the prevailing 
winds. Moreover, the Georgian was boring, its front page usually cluttered 
with bland wire-service accounts from distant lands. The most exciting 
feature in Hearst's new acquisition was the Saturday "Poultry, Pet and Live- 
stock" tabloid, which carried "Bill Zimmer's Hen Call" column and photo- 
graphs ("By Our Chicken Expert") of pullet after pulchritudinous pullet. 
With a circulation of 38,000, the Georgian was Atlanta's weakest daily. 

The dominant voices in Georgia journalism in 1912 belonged to the 
morning Atlanta Constitution, the mouthpiece of the New South, and the 
evening Atlanta Journal, which, as its masthead proclaimed, Covered Dixie 
Like the Dew. Though separately owned and of varying circulations (the 
Journal, thanks to its strong rural following, reported an audited circulation 
of 52,000; the Constitution, just 41,405), the papers were in many ways sim- 
ilar. Each boosted Atlanta's metropolitan aspirations. Each devoted count- 
less inches to the doings of the capital's social elite. And each, it went 
without saying, purveyed the stereotypic view of Negroes. 

Yet there were differences, in both style and substance. The Constitution 
was by far the breezier and less formal of the two. It was the brassy voice of 
Dixie's city of big shoulders— cotton broker for the world, cola maker, 
player with railroads and the South's freight handler. It took chances, fol- 
lowed hunches. The Journal, on the other hand, was more conservative and 



EXTRA, EXTRA 41 

literary; it still used honorifics— "Mr." Slaton— and in 191 2, it unveiled a 
Sunday magazine. Like Harold Ross, its reporters took obsessive care with 
the facts. 

There were, of course, sharper distinctions between the papers, for this 
was the age of partisan journalism. The Constitution, published and edited 
by Clark Howell, was with a few reservations the organ of Governor Joseph 
Brown. The Journal, published by James Gray, was with no reservations the 
organ of its founder, United States Senator Hoke Smith, Brown's rival. As a 
consequence, the sheets fought continuously, the battles intensifying during 
Georgia's Democratic primaries. The Constitution supported the railroads 
(Brown was connected with the Western and Atlantic line), while the Jour- 
nal supported reform. (Smith had been a personal injury lawyer before 
entering politics and had campaigned against the railroads' grip on the 
South.) 

Despite the fractiousness of these disputes, they were, in any final analy- 
sis, family feuds. The Clark Howells and James Grays, the Hoke Smiths 
and Joseph Browns— in fact, all the men who ran Atlanta's newspapers— 
were, if not brothers in blood, brothers in the same larger faith. They'd at- 
tended the University of Georgia, dated girls from Athens's Lucy Cobb 
Institute— a rigorous finishing school on whose ornately carved verandas 
many a romance had bloomed— married each other's sisters and cousins 
and buried each other's fathers. Thus, while they might spar in print and 
hate for life, the clashes— save for those involving the unfettered Tom Wat- 
son—rarely threatened what was, at heart, a rigidly ordered world, one 
rooted in common lineage and preserved by mutual interests. Sons of the 
true South, their bonds went deeper than factional politics. 

Within a month after purchasing the Georgian, William Randolph 
Hearst had utterly transformed the paper. Overnight, the stale features, 
stodgy layouts and irrelevant wire-service stories from faraway locales dis- 
appeared, replaced by 120-proof Hearst journalism. Every day, the Geor- 
gian's redesigned front page played up a jarring local crime story, and if 
there were no jarring local crimes, the editors would pull together a dozen 
unrelated items from the police blotter and run them beneath the banner 
crime wave sweeps city. Inside, a host of new columnists— most writing 
under flashy noms de plume— made their debuts. In her "Chatter of Soci- 
ety" column, Polly Peachtree— a Dixified Cholly Knickerbocker— broad- 
cast bits of gossip while chronicling tea parties. Meantime, in her "Advice 
to the Lovelorn" department, Beatrice Fairfax— as the syndicated Marie 
Manning was known— salved the wounds of the heartsick in a warm and 
winning style. Mixed into this stew were Hearst's famed cartoons (among 
them, the popular Barney Google), alliteratively titled sports departments 



42 AND THE DEAD SHALL RISE 

("Jolts and Jars in the Squared Circle," "Bunts and Bingles of the Baseball 
World"), original artwork and so many photographs that the paper some- 
times resembled a picture gallery. 

Simultaneously, the Georgian inaugurated an editorial stance that, while 
remaining true to the sheet's combative roots, managed to throw a bone to 
Atlanta's ruling elites. Hearst had been in possession but a week when the 
paper began assailing the very symbol of patrician hegemony— the Georgia 
Railway and Electric Company. Beneath the page-one screamer "This Is 
Why Atlanta's Electricity Must Be Cheaper," the paper charged the utility 
with gouging consumers. Yet in the same edition that kicked off the cam- 
paign, the editorial page boomed: "Be An Optimist and Hitch Your Wagon 
to the Star of Atlanta's Destiny." Beneath this caption, Atlantans were 
urged to boost more loudly, to cheer "new skyscrapers and roads" and "the 
real estate and population boom." 

The hand orchestrating the Georgian's journalistic balancing act be- 
longed to Keats Speed, erstwhile managing editor of the New York Journal 
and, equally important, a native of Kentucky. Speed, in Asbury's estima- 
tion, "was familiar with the South and Georgia; he knew exactly what the 
people would accept." To enable the editor to do the job, Hearst had 
imported what even fifty years later one old-time Georgia newsman termed 
"the finest staff of any paper in the country." City editor Mike Clofine was a 
New York Journal alum. Police reporter William Flythe, a native Georgian, 
would be in Atlanta just two years, then move on to cover the Mexican 
revolution. Photographers Johnny Brown and Matty Mathewson were on 
loan from the Chicago American. A few holdovers from the old Georgian 
remained, among them the insightful political editor James B. Nevin and a 
silver-tongued feature writer from Marietta named O. B. Keeler. But by and 
large, everyone involved was a hired gun. 

One of the most talented of these hired guns was that journalistic rain- 
maker Herbert Asbury. During the 1920s, Asbury would write such roguish 
books as The Gangs of New York, while contributing frequently to the 
nation's leading magazines. 

"Hearst Comes to Atlanta," Asbury's 1926 account for the American 
Mercury of the Georgian's coverage of Mary Phagan's murder and all that 
followed offers the only insider's view of how Hearst journalism trans- 
formed a hideous crime into a conflagration. Equal parts reportage and 
indictment ("Had not Hearst owned the Georgian" asserts Asbury, "the 
story probably would have died a natural death"), the piece is unsparing in 
its assessments, including those of its author. But it is most unsparing in its 
judgment of a newly arrived editor. 

Several weeks before the Phagan murder, the Chief, believing that Keats 
Speed had put the Georgian on sound Hearstian footing, recalled the editor 



EXTRA, EXTRA 43 

to New York. The evidence— most especially, a 22,000 circulation gain— 
boded well. Furthermore, Hearst had used his acquisition to form a friend- 
ship with a rising political star he could envision aiding his presidential 
ambitions in the South: Governor-elect John Slaton. (Just days before the 
Phagan killing, in fact, Hearst had feted the Slatons at his New York apart- 
ment.) The situation seemed in hand, and the Chief turned the reins over to 
Foster Coates. 

By 1913, the 53-year-old Coates— known behind his back as "Curser" 
and regarded as one of the most profane men in a business of profane 
men— had become Hearst's roving surrogate. One month he was in Los 
Angeles, the next San Francisco, the next New York. Yet despite having 
graduated to management, Coates remained, at heart, the greatest page- 
one editor of his day, the virtual headline wizard who as managing editor of 
Joseph Pulitzer's World in 1898 had gone one-on-one with the Chief during 
the circulation war that sparked the shooting war in Havana. (It was a 
Coates screamer that became the conflict's rallying cry: remember the 
Maine.) Whatever gains the Journal made following the sinking of the 
American battleship, the World matched (Pulitzer sold five million papers 
the week the battleship exploded), and Coates deserved much of the credit. 
Or, in Pulitzer's view, the blame. Pulitzer valued the circulation victories 
Coates was winning but was offended by the editor's methods, and once the 
Spanish- American War ended, he ordered his pressmen to melt the cases of 
three-inch lead type with which Coates had worked his magic. For the edi- 
tor, it was a harsh rebuke, one that William Randolph Hearst, who'd recog- 
nized a kindred spirit when he read him, used to his advantage. For the 
Chief, men like Coates were invaluable, and he wooed and ultimately won 
him by appealing to both his vanity and his checkbook. Within days of 
going to work for the Journal, Coates was tooling around Manhattan in a 
sporty new $ 1 ,700 automobile. 

Curser Coates enjoyed the perks of power, and upon arriving in Atlanta, 
he settled in at the luxurious Georgian Terrace Hotel on Peachtree Street 
and Ponce de Leon Avenue in one of the capital's plushest enclaves. It was 
there, on Sunday morning, April 27, that he read Britt Craig's scoop in the 
Constitution's extra and, in Asbury's words, "saw the possibilities immedi- 
ately." By noon, as the staffs of the Journal and Constitution, again quoting 
Asbury, "slumbered peacefully in church or otherwise wasted the Sabbath," 
every last Georgian reporter was hard at work in the newspaper's Alabama 
Street newsroom. 

For Coates, it was 1898 all over again. Suddenly, he was back at the helm 
of a great newspaper atop a breaking story. Telephones ringing, typewriters 
clattering, adrenaline surging— this was what newsmen lived for. This was 
also— for someone who had literally just stepped off the train— an environ- 



44 AND THE DEAD SHALL RISE 

ment conducive to rashness and foolhardiness. Even as he was caught up in 
Coates's machinations, Herbert Asbury was alarmed. Where Speed had 
realized from the start that "the Georgian couldn't do many of the things 
that the Journal did," Asbury would later write, Coates, "knowing little if 
anything of the South or the Southern temperament, thought the Georgian 
could do these things and more." And what made it all so explosive was that 
the journalistic shock troops at Coates's command had been sitting around 
for months bored out of their minds by life in what to Hearst may have 
been a critical stop on his way to Washington but to them was a provincial 
outpost. "We played the case harder," Asbury would declare, "than any 
Hearst paper had ever played such a case anywhere." 



By the time the Georgian hit the streets Monday, it was too late for the 
Constitution to recover. Only 24 hours earlier, the morning paper had 
owned the Phagan story, but now it belonged to Hearst. Even the Geor- 
gian's straight news pieces were better— not that this was so surprising. To 
practice the sort of journalistic cubism preferred by Hearst, a newspaper- 
man first had to master the just-the-facts approach. To distort, one had to 
report, and this the Georgian's hardened veterans did. All of which left the 
Constitution in a bad position. While the sheet scored a couple of coups— 
among them a family snapshot of little Mary strolling beneath her umbrella 
and an X-marks-the-spot photo of the corner of the factory basement 
where the body had been discovered— it otherwise paled in comparison, 
devoting just a column and a half to the murder on its front page and only 
three columns inside. 

In its first Monday edition, the Journal published less on the crime than 
the Constitution, but by late afternoon, it had rallied. The Journal's editors 
topped the front page of their final edition with a four-column picture of 
Mary Phagan— bows in her hair, eyes sparkling— that presented the girl as 
the embodiment of Southern womanhood. Additionally, they ran a shot of 
the pencil factory building with cutouts showing where the body had been 
found and an inset offering an enlarged view of the sliding back door. They 
also ran a photograph of one of the murder notes that Harold Ross had 
"borrowed" Sunday morning. 

Yet for all of that, the Journal's performance faded when compared 
to any edition of the Georgian. The afternoon paper simply didn't have 
the goods. "They couldn't verify half the Georgian's stories sufficiently 
to rewrite them for subsequent editions," noted Asbury. Not that the Jour- 
nal didn't try to rewrite the Georgian. Beneath the headline "god's 

VENGEANCE WILL STRIKE BRUTE WHO KILLED HER," SAYS GRANDFATHER 



EXTRA, EXTRA 45 

of mary phagan, the paper published a toned-down version of Asbury's 
article about William Jackson Phagan. But it wasn't the same. Gone was the 
roaring train. Gone were the tears running down the old man's face. And 
gone was the rain. What was left— like most of what ran in the Journal— 
was factual, but for now the facts weren't selling. On this April Monday, 
Atlanta had surrendered to William Randolph Hearst. 



FOUR 



Onward, Christian Soldiers 



Bi 



etween 6:30 and 7:00 on Monday morning, just as the Georgian's 
first extra was rolling off the presses, an 18-year-old National Pencil 
Company machinist named R. P. Barrett noticed a suspicious 
red spot on the factory's metal department floor near a women's dressing 
room some twenty feet from Mary Phagan's workstation. Fan-shaped, four 
or five inches in diameter and haloed by a few smaller crimson spatterings, 
the spot appeared to be blood. Additionally, it seemed as if someone had 
tried to hide it. "It looked like some white substance had been wiped over 
it," Barrett would later testify. "It looked like it had been smeared with a 
coarse broom." Whether this substance was potash or a soapy lubricant 
called Haskoline— both of which were stored nearby— Barrett couldn't 
determine, but after a janitor told him that neither the spot nor the white 
grease had been there Friday afternoon, he summoned Lemmie Quinn, a 
foreman, who in turn notified the police. 

With that, Barrett prepared to start his day. At quitting time Friday, he 
had left a piece of unfinished work in a bench lathe that faced the metal 
department wall about ten feet past the dead girl's machine. Powered by 
pulleys that descended from the ceiling, the lathe was controlled by an 
L-shaped steel handle that extended at a right angle from its front edge. 
When Barrett turned the handle, he observed something more startling 
than the red spot— six or eight strands of auburn hair that he would swear 
weren't "there on Friday, for I had used that machine up to 5:30." Once 
again, he alerted Quinn. 

By now, the plant had begun to fill with workers, and many flocked to the 
scene of Barrett's discoveries. Soon, Detective John Starnes and several 
officers appeared, trailed by a gaggle of reporters. As the crowd looked on, 
14-year-old Magnolia Kennedy, a metal department employee, tiptoed to 
the lathe, stared intently and exclaimed: "It's Mary's hair. I know it." 

Hard upon the Kennedy girl's pronouncement came another dramatic 
verdict, this one from a more authoritative figure— Police Chief James 
Litchfield Beavers. Testifying to the thrall in which the crime held Atlanta, 
the chief had come to the factory to assure himself —and the city— that the 
investigation was progressing. After an officer chipped up several pieces of 



ONWARD, CHRISTIAN SOLDIERS 47 

the red-stained floor, Beavers pulled a bottle of alcohol from his pocket and 
submitted one of the specimens to a rudimentary test. When the discol- 
oration did not dissolve as it would have had it been oil or paint, when it in 
fact turned scarlet, he announced that it was blood. 

Thus the idea that Mary Phagan had been attacked on the factory's sec- 
ond floor took hold at the outset. The Georgian gave the theory its unqual- 
ified blessing, reporting that "blood stains leading from the lathe showed 
the manner in which the fiend had dragged the body of his victim to the 
basement." So, too, did the more sober Journal, which proclaimed that 
"investigations [this] morning proved that Mary Phagan was murdered 
in the metal room and that her body was lowered in the elevator to the 
basement." 



At the very hour the police and the press were determining that Mary Pha- 
gan had been slain in the general vicinity of Leo Frank's office, another 
group of detectives was pursuing the man who at this juncture appeared to 
be the best suspect— a recently discharged pencil company bookkeeper 
named James Milton Gantt. 

The detectives' suspicions regarding Gantt— a Marietta native who'd 
been reared in the same Sardis section where little Mary had spent her 
early childhood— had been whetted by a report that the 26-year-old book- 
keeper was enamored of the girl. Among the sources for this information 
were several of the factory's female laborers, day watchman E. F. Holloway 
and evidently Leo Frank. More crucial, however, was the news that Gantt 
had appeared at the plant Saturday at six p.m. just as Newt Lee and Frank 
were locking up. After advising the superintendent— who'd fired him when 
the factory cash box had tallied $2 short a few weeks earlier— that he'd left 
two pairs of shoes upstairs, Gantt had been granted admittance to the 
building, where he'd remained some twenty minutes, phoning an unidenti- 
fied woman before emerging with his size elevens. Detectives had actually 
begun looking for Gantt on Sunday, but it wasn't until Monday morning, 
when he was spotted leaving a bar across the street from the plant, that they 
caught a break. While Gantt managed to board a Marietta-bound trolley 
before officers closed in, they alerted the Cobb County sheriff, and around 
noon Deputy J. B. Hicks arrested him. 

Gantt— who when apprehended was reportedly carrying a suitcase 
packed for a long trip— was rushed back to Atlanta, where he informed 
detectives that though he had dropped by the factory Saturday evening, he 
was home in bed by ten p.m. and hadn't seen Mary Phagan in weeks. Yet 
according to Gantt's sister, with whom he roomed and to whom the officers 
had already spoken, the bookkeeper hadn't been home in nearly a month. 



48 AND THE DEAD SHALL RISE 

Mrs. F. C. Terrell told the police that she'd actually been worried about her 
brother because she'd not received a single letter from him during the 
period. Gantt's alibi seemingly destroyed, the investigators began to weave 
circumstances into theory, the theory being that the bookkeeper had mur- 
dered the girl sometime during the day Saturday, then used his six p.m. visit 
to the plant to recruit Newt Lee to hide her body. Late Monday afternoon, 
according to the Constitution, "a squad of detectives and criminal experts 
pulled off their coats, rolled their sleeves, and prepared for a determined 
siege, which they vowed would not end until they had been convinced that 
Gant [sic] was either guilty or innocent." 



It was while R. P. Barrett was making his discoveries and the officers were 
searching for James Gantt that Detective John Black, accompanied by a 
young investigator named B. B. Haslett, reappeared at Leo Frank's home to 
escort the factory superintendent back downtown. Though this second 
encounter between Black and Frank was less tense than the first— the 
detectives waited patiently while Frank ate breakfast— Black was no more 
forthcoming regarding the purpose of the visit. In fact, as the men walked 
into the city, strolling east on Georgia Avenue, north on Capitol, then east 
on Decatur toward police headquarters at 175 Decatur, Black was as taci- 
turn as ever. In response to Frank's persistent queries, Haslett finally 
replied: "Well, Newt Lee has been saying something." 

What Newt Lee— during the course of several Sunday-night and early- 
Monday-morning sweatings— had been saying was that when he'd arrived 
at work on Saturday at four p.m. just as Frank had instructed on Friday, the 
superintendent had anxiously ordered him away. "He was rubbing his 
hands," Lee would later tell the coroner's inquest. "He told me to go back 
out in town and not to get back later than six o'clock." Newt said he'd 
answered that he would rather curl up in the building and take a nap but 
Frank had objected, hustling him off with the words: "Go out and have a 
good time." Just before six, Newt had returned, followed closely by Gantt, 
whose appearance had further upset Frank. According to Lee, the superin- 
tendent had been reluctant to let the dismissed bookkeeper inside, inform- 
ing him that his shoes had been swept out by the janitor— a contention that 
was quickly disproved. At seven, Lee said, Frank had phoned him from 
home to ask if things were all right. It was, he added, the first time his boss 
had ever called him. 

Not that Haslett was going to tell Frank any of this. "Chief Lanford will 
tell you when you get down there," he responded when the factory superin- 
tendent continued to press him, and the group marched on in silence. 

Once the men reached the station house, they headed to the third-floor 



ONWARD, CHRISTIAN SOLDIERS 49 

offices of Newport Lanford, but the detective chief had gone out. So for the 
next hour, Frank waited in an anteroom, talking with various officers. 
About 9:30, Herbert Haas, of counsel to the pencil company, and Sig Mon- 
tag appeared. And at 10:00, Luther Rosser, the lawyer to Atlanta's corpo- 
rate elite and the new partner of governor-elect John Slaton, arrived. 
Rosser's presence was interpreted by many as an indication that Mister Sig 
believed Frank to be in serious straits, but there was also another explana- 
tion. Haas's wife was expecting, and he'd evidently asked his colleague, who 
occasionally handled some of the pencil company's affairs, to back him up 
in case he needed to make a sudden departure. 

"Hello boys, what's the trouble?" Rosser inquired by way of greeting, 
whereupon Haas began explaining. During this huddle, Lanford returned, 
beckoned Frank into his office and shut the door. 

Though the detective chief and the superintendent were alone for just a 
few seconds, it was time enough for Rosser to take umbrage. 

Standing at six feet and weighing 220 pounds with a massive, balding 
snapping turtle of a head, 53-year-old Luther Rosser was the embodiment 
of Atlanta's fierce moneyed might. An old hand at the game of badgering 
and buffeting who discarded all rules laid down by polite society and was 
thus of great utility to polite society, Rosser was uncowed, unbowed and 
unrepentant. Even in matters of dress, he was obstinate, usually appearing 
before the bar— and everywhere else, for that matter— sans cravat. Friends 
viewed his refusal to wear a tie as a harmless idiosyncracy. In a story still 
told years later, his grandson delighted in recalling that Rosser wouldn't 
make an exception when arguing a case before the United States Supreme 
Court. ("If it's clothes they want," he reportedly roared at a fellow lawyer 
prior to a joint appearance before the high tribunal, "you give it to them. If 
it's law they want, I'll give it to them.") Yet Rosser's disdain for neckwear 
was no mere quirk. It was, instead, a defining gesture, the adamant signature 
of an adamant soul. 

In brief, no detective chief was going to shut a door in Rosser's face, and 
following Frank's disappearance, he flew into a rage, bellowing to a guard: 
"I am going into that room. That man is my client." Soon thereafter, Lan- 
ford admitted the lawyer, but he would not forget the outburst. In fact, he 
would always wonder why Rosser had thrown a fit on behalf of someone 
who at this point had not been charged with anything. 

The sequence in which events unfolded in Lanford's office was never 
made clear, but early on, Frank handed Lanford Newt Lee's time slip— the 
card the superintendent had initialed Sunday morning after a glance indi- 
cated the night watchman had clocked in at all the appropriate intervals. 
Then, Frank made a stunning announcement: After studying the slip more 
carefully, he said, he'd realized that his first assessment had been wrong. 



50 AND THE DEAD SHALL RISE 

Lee had actually missed three punches, meaning that on three occasions 
between 6 p.m. Saturday and 3 a.m. Sunday, the night watchman's where- 
abouts could not be accounted for. 

On the heels of this astonishing about-face, the chief, believing any sub- 
sequent revelations should be part of the sworn record, asked Frank if he 
would make a statement, to which Rosser assented. Accordingly, the super- 
intendent sat down at a table across from the detective department's secre- 
tary, a mustachioed notary public named C. Gay February. 

Frank's deposition took the form of a straightforward chronology of his 
version of the events of Saturday, April 26. He reiterated that he'd been 
alone in his office when Mary Phagan "came in between 12:05 and 12:10, 
maybe 12:07, to g et h er pay envelope," adding: "I paid her and she went out 
of the office. It was impossible to see the direction she went in when she left. 
My impression was that she just walked away. I didn't pay any particular 
attention." At 1:10, he said he'd decided to go to lunch, but since he in- 
tended to bolt the Forsyth Street door (making ingress to or egress from the 
factory impossible), he had to alert two laborers— Arthur White and Harry 
Denham— who were on the fourth floor servicing some equipment. White's 
wife, who'd dropped by to visit, was with the men. As a consequence, he said 
he'd dashed upstairs. After White and Denham told him they weren't done, 
he'd agreed to let them remain in the locked-up plant. Immediately there- 
after, Mrs. White exited, and he followed. At 3:00, he said, he'd returned to 
find White and Denham almost finished. At 3:15, the workers clocked out, 
although he recalled that White had ducked into the office and asked for a 
$2 loan. He said he'd responded: "What's the matter; we just paid off." 
When the worker replied that his wife had "robbed him," he said he'd given 
him the money. 

Now came the part Frank's auditors were awaiting, the part about which 
Lee had been talking: 

On Friday night I told [Newt] after I give him the keys, "You had better 
come around early tomorrow because I may go to the ball game" [the 
Atlanta Crackers were playing the Nashville Vols at 4 p.m. at Ponce de 
Leon Park], and he come early because of that fact. I told him to come 
early, and he came 20 minutes to 4. 1 figured I could leave about 1 o'clock 
and would not come back, but it was so cold I didn't want to risk catching 
cold [at the game] and I come back to the factory as I usually do. He come 
in and I said, "Newt, you are early," and he said, "Yes, sir," ... I told him he 
could go out; he got there so early and I was going to be there. 

From here, Frank shifted seamlessly to the other critical topic, the 6 p.m. 
encounter with the discharged bookkeeper: 



ONWARD, CHRISTIAN SOLDIERS 51 

When I went out, talking to Newt Lee was J. M. Gantt, a man I had fired 
about two weeks previous. Newt told me he wanted to go up to get a pair of 
shoes he left while he was working there, and Gantt said to me, "Newt 
don't want me to go up," and he said, "You can go with me, Mr. Frank," and 
I said, "That's all right, go with him Newt," and I went on home, and I got 
home about 6:25. Nothing else happened; that's all I know ... I tried to 
telephone [Newt] when I got home [but] I didn't get an answer ... at 
7 o'clock ... I called him and asked him if Gantt got his shoes and he said 
yes, he got them, and I said is everything all right and he said yes, and the 
next thing I knew they called me at 7:30 the next morning. 

To the police officers, Frank's recounting seemed at once mystifyingly 
detailed and frustratingly vague. They pressed him to clarify certain facts. 
"Why, it's preposterous," interceded Luther Rosser. "A man who would 
have done such a deed must be full of scratches and marks and his clothing 
must be bloody." Whereupon the superintendent stood and stripped. As 
Frank would later describe it: 

I . . . showed them my underclothing and my top shirt and my body, I bared 
it to them all that came within the range of their vision. I had everything 
open to them, and all they had to do was to look and see it. 

Frank's torso was, indeed, unblemished. But his lawyers didn't believe 
the display convinced the lawmen. Hoping to vanquish all doubts, Herbert 
Haas urged Frank to take John Black and B. B. Haslett to his home and let 
them examine the laundry. So around noon, the group returned to Georgia 
Avenue. At the house, the men trooped upstairs to Leo and Lucille 's bed- 
room. There, Frank dumped the contents of his laundry bag onto the bed, 
then stood aside as the detectives pawed "every article of clothing that I 
had discarded that past week." Finding no bloodstains, Black and Haslett 
departed and Frank, feeling that they were satisfied, joined Lucille and her 
parents in the parlor. Soon the Negro cook, Minola McKnight, served din- 
ner, and life resumed its familiar rhythms. 



Though calm may have returned to 68 East Georgia Avenue Monday after- 
noon, at the Decatur Street headquarters of the Atlanta police, pandemo- 
nium reigned, and it had little to do with hair and blood samples, fired 
bookkeepers or Leo M. Frank. Now that the news of Mary Phagan's death 
had been widely broadcast, now that the scent of reward money was in the 
air, everyone, it seemed, was advancing a solution to the crime. As the Geor- 
gian— failing to acknowledge its role in fomenting the chaos— described 



52 AND THE DEAD SHALL RISE 

the situation: "All day was a ceaseless procession going into the detectives' 
offices and another coming out. The officers were harrassed as much as they 
were aided." 

Most of the tipsters arrived bearing variations of two related and much 
publicized theories— the tall, thin man scenario advanced by Edgar Sentell 
and the reeling, drug-addled girl scenario advanced by E. S. Skipper. Char- 
lie Hall, director of the city sanitation department's motor division, said 
he'd seen a girl being dragged along Forsyth Street on Saturday night by a 
tall, thin man. R. B. Pyron, a telegraph operator, said he'd seen a sobbing 
girl in a touring car stopped at a downtown railroad crossing at roughly the 
same hour. John R. Phillips, the manager of a Forsyth Street hotel, said a 
man who resembled James Gantt had tried to register at his establishment 
that evening in the company of an underage girl. Most dramatic, an uniden- 
tified man said he'd observed a woman and two men mistreat a crying girl 
near the pencil plant late Saturday. The woman had reportedly told the girl: 
"Come along dearie, don't create a scene. You'll attract the cops." To which 
the girl had reportedly replied: "I don't care. I don't care." 

Even at the time, many of these leads must have been recognizable as 
manifestations of either communal shell shock or Hearst-induced avarice, 
yet none of them could be discounted and some were compelling. The hotel 
manager who said he had turned away the couple on Saturday evening had 
come forward only after checking at Bloomfield's mortuary to assure him- 
self that the body lying in state belonged to the young lady who'd called at 
his concern. 

As report after report flowed into the station house, detectives began 
seriously entertaining the notion that Mary Phagan, after receiving her pay 
Saturday afternoon, had been accosted on Atlanta's streets, if not by an 
acquaintance such as Mullinax or Gantt, then by some as yet unidentified 
man who'd used drugs to seduce her or by so-called white slavers who lured 
girls into prostitution. As the Journal reported: "Police are making two ran- 
dom investigations: One is that Mary Phagan was the victim of a white slave 
plot. The other is that she was taken for an automobile ride before her mur- 
der and was drugged or made drunk." 

How officers hoped to reconcile either of these possibilities with the 
clues they'd thus far accumulated is uncertain. At this point, the case lay 
before them in dozens of pieces, none of which fit together. If, as the police 
suspected, Mary Phagan had been waylaid on the streets of Atlanta, why 
had her assailant brought her back to the pencil factory's second floor to 
kill her? If, as Mullinax's girlfriend was now maintaining, young Arthur had 
spent Saturday night with her, why was Edgar Sentell so certain he'd seen 
the ex-streetcar conductor squiring little Mary along Forsyth Street that 
evening? The reverse of this question could be asked about Gantt. If, as 



ONWARD, CHRISTIAN SOLDIERS 53 

the bookkeeper swore, he was home in bed at the time, why would his 
sister contend she hadn't seen him in a month? As for Newt Lee, the Jour- 
nal flatly declared: "The police place no belief in his protestations of inno- 
cence." Then there was Leo Frank, whose behavior on Sunday morning had 
seemed overly agitated, whose change of heart regarding Lee's time slip 
provoked skepticism and whose account of his Saturday activities also 
inspired doubts. And as for the murder notes, all anyone could say about 
them was summed up in a Georgian headline: "Strange Notes Increase 
Mystery." No wonder that come Hiesday, the Constitution would report: 
"All day Monday, detectives worked diligently for evidence which would 
throw light upon the killing, and when night came they were baffled." 



The headquarters of the Atlanta Police Department dominated a section of 
Decatur Street lined by pawnshops whose Russian Jewish proprietors lived 
upstairs or in the rear, wagon yards crowded with mule carts and swarming 
with raw-boned old boys just in from the hills, Chinese laundries, tintype 
studios, Irish near-beer saloons, Greek pastry shops, Italian delicatessens 
boasting such delectable fare that they were frequented each season by the 
Met's visiting stars and— most ubiquitously— fish markets and grills that 
catered solely to Negroes and lent the byway its piscatory cognomen: Mul- 
let Avenue. In 1913, this thoroughfare, if not as legendary as Peachtree 
Street, was much more vibrant, the throbbing aorta that pulsed the blood of 
every race, class and creed into the burgeoning capital of the New South. As 
a writer for the Journal magazine described it: 

Decatur Street is a kaleidoscope of light, noise and bustle from dawn to 
dawn. No hour is too early for the fish and "hot dogs" to be sold, or for a 
dusky thief to pawn a watch or dispose of a little "blind tiger" [illegal 
whisky]; no time too late for a black mammy to buy a red cotton dress or a 
Jew to auction off ten pairs of number twelve shoes . . . Here, bearded 
mountaineers . . . brush shoulders with laborers fresh from the Old Coun- 
try .. . The Yankee spieler cries his wares and the Confederate veteran 
buys 'em, and through it all negroes, yellow, black and brown thread their 
laughing, shiftless way, types of the south which could be seen in no other 
city in the land in all their native picturesqueness. Decatur Street is the 
melting pot of Dixie. 

The station house building, an immense Victorian-Gothic affair erected 
in 1893, consisted of two three-story redbrick wings radiating from a seven- 
story central tower that emerged from an arched marble portal and bulked 
upward toward an observation deck surrounded by columns and guarded 



54 AND THE DEAD SHALL RISE 

by gargoyles. For a department that was at once righteous yet rascally, mor- 
alizing yet draconian, there could have been no more fitting home. 

Just as Atlanta's other municipal services— especially those regulating 
public health and sanitation— were unprepared for the many problems bred 
by the city's emergence as a metropolis, so, too, was its police department. 
With few exceptions, the squad's 313 members were country boys who had 
received no formal training. (Until 1931, recruits were issued a badge, 
revolver, blackjack and Sam Brown belt and, after a week of instruction, 
became full-fledged policemen.) Similarly, the force was ill-equipped and 
essentially unmotorized. Chief Beavers was chauffeured around in a lim- 
ousine and a motorcycle division had been formed, but by day officers 
patrolled on horseback, by night on bicycle. The force did employ a Bertillon 
technician (an expert in the archaic system that used skull and hand meas- 
urements for identification purposes), but it had yet to invest in a fingerprint 
lab. Perhaps most tellingly, the department maintained no precincts in out- 
lying districts, relying instead on a network of "lockboxes" for warehousing 
prisoners who couldn't be readily transported downtown. These hexagonal 
cast-iron booths— freezing in winter, sweltering in summer— were located 
in all parts of the city and called to mind nothing so much as the pillories of 
Salem Common. 

Exacerbating the force's operational shortcomings was a department- 
wide predisposition to brutality. Much of the violence was directed at 
Negroes. (In 1915, the force arrested 11,787 blacks as opposed to just 5,486 
whites). Since 1909, the police had beaten at least one Negro to death, and 
since 191 1, they had failed to solve the murders of seventeen Negro 
women. (Since 1900, it must be added, three officers had been killed in the 
line of duty by black toughs.) 

Had the Atlanta Police Department been merely befuddled by change, 
its men merely inclined to pistol-whip the random Negro wrongdoer, it 
would be misleading to dwell on these failings, for in 19 13, most other big- 
city law enforcement agencies were just as mired in the past, just as mean 
and, in the South, just as hostile to blacks. Yet the force was also plagued by 
another demon: institutional corruption. 

One particular incident had exposed Detective Chief Newport A. Lan- 
ford and his officers to damning scrutiny and would cast an instructional 
light on the techniques they brought to bear in the Phagan case. On a 
November night in 19 10, Detective Robert A. Wood, believing himself to 
be unobserved, attacked one Ivan Wimbush east of headquarters. After 
knocking Wimbush, who was white and had done nothing illegal but was 
regarded around the station house as a disreputable character, to the 
ground, Wood clubbed him across the face, drew his pistol and crouched as 
if preparing to fire. How far the detective intended to go is unknown, 



ONWARD, CHRISTIAN SOLDIERS 55 

although Wimbush later swore that Wood would have killed him had not 
two bystanders interceded. While the detective termed these Samaritans 
"rounders," they were in actuality reporters, one from the Journal, the other 
from the Constitution, and as it turned out they'd seen everything and were 
still watching during the booking procedure at headquarters when Wood 
again hit Wimbush, this time under the unblinking gaze of a captain and 
two patrolmen. 

For all its ugliness, the Wimbush beating probably would not have cre- 
ated a stir had it not been for what happened afterward. At first, only Wood 
and several others were involved in the cover-up, falsifying an attempted 
murder charge against their prisoner, then seeking a high bail in order to 
keep him out of sight. But the judge who conducted the preliminary hearing, 
having received reports of what had transpired, dismissed the allegations, 
reprimanded Wood and demanded an investigation. At which point, as the 
Georgian phrased it, "the [full] machinery of the police department" was put 
to work. With Newport Lanford's knowledge, C. Gay February, the secretary 
who would take Leo Frank's statement, concocted an affidavit asserting that 
the Journal and Constitution reporters were not present during the attack. 
Numerous officers signed the document. Meanwhile, a statement attesting 
to Wimbush's bad character was also prepared and forwarded to a prosti- 
tute for her signature. 

Not surprisingly, Atlanta's newspapers soon exposed the goings-on, and 
after a week of headlines, the city's police commission convened a hearing. 
At this session, the men who'd signed the false affidavits confessed, the 
captain and patrolmen who'd stood by while Wimbush was beaten were 
disciplined and Wood was suspended. Chief Lanford avoided punishment, 
although a year later, editorial writers were still demanding his head. In 
response, the detective chief— with a bravura suggesting he'd lined up 
assurances from on high— called for an investigation, and the police com- 
mission appointed what would be dubbed the "whitewash committee." In 
August 191 1, Lanford was exonerated. Lamented the Constitution: "The 
investigating committee was made up of members who are evidently ready 
to give the detective department a clean bill of health, without even a per- 
functory inquiry." 

In the wake of the Wimbush incident, it's small wonder that Atlantans 
could often be heard to say that the police "could frame up anything on 
you." Yet the force's savage predilections— evident as they would become 
in the Phagan investigation— were, in truth, on the wane, retreating under 
the onslaughts of a new puritanical regime that sought to rid the city of vice 
and make it a paragon of municipal virtue. The department's moralizing 
angels, in short, were ascendant, and they would exert as powerful an influ- 
ence on the Phagan probe as their darker twin. 



56 AND THE DEAD SHALL RISE 

To understand how the Atlanta police force became a regiment of Chris- 
tian soldiers and how Chief James L. Beavers— a dapper man who shaded 
his fine nose and neatly clipped mustache beneath the brim of a smart blue 
kepi— became a fierce and terrible archangel, one must first understand 
that since Reconstruction, Atlanta had boasted the most raffish houses of 
prostitution south of New York or east of New Orleans and that they'd 
operated with the consent of the police and to the financial benefit of top 
city officials. 

At least fifty in number, the majority of these brothels were located in a 
neighborhood known as the "restricted district" on Mechanic Street west of 
the ornate towers of Atlanta's principal port of entry— Terminal Train Sta- 
tion. This section's overlord was a dashing rogue named Charles C. Jones. 
Typically identified in the papers as a "sporting man," Jones navigated eas- 
ily among Atlanta's elite. He owned the Rex, an elegant establishment snug 
against Peachtree Street's Candler Building. There, amid the crack of pool 
balls, the city's tippling businessmen discussed politics and deals. In a sense, 
the Rex was Jones's cover, not that he made any secret of his other line of 
merchandise. Everybody knew, and while not everybody approved, anyone 
who protested would risk insulting Jones's benefactor— Atlanta mayor 
Jimmy Woodward. 

Jones and Woodward were, at first blush, unlikely allies. While the suave 
Jones was a friend of the mighty, Woodward was a devoted union man, an 
ex-printer who had risen through ward politics to the mayor's office in 1898. 
In subsequent years, he'd been reelected, defeated and in 1912 reelected 
again. Woodward, however, had a weakness: he was a falling-down drunk. 
Since 1900, reports of Woodward's jags, which tended to occur in public and 
feature bawdy ladies, had become a staple in Atlanta's newspapers, and 
while the voters had been tolerant, the mayor had tried their souls. As a 
columnist for a North Georgia weekly observed after one of Woodward's 
benders prompted hearings: "It seems that Atlanta's mayor— Mr. Wood- 
ward—has been having a high old time in that city, judging from the testi- 
mony given against him during the investigation, getting drunk and making 
calls on lewd women. Very nice rooster for a mayor." 

The restricted district did not depend solely on the mayor's largesse. 
Some police officers received payoffs to look the other way. More impor- 
tant, numerous disinterested Atlanta judges, doctors and editors believed 
the district performed a vital function. As the Georgian observed: "There 
are many who say that [if] women are driven from a 'regulated' and super- 
vised restricted district [they] will drift into residence districts and good 
citizens will be living next door to disreputable resorts and in the same 
apartment houses with objectionable characters without knowing it until 
the disorder becomes flagrant." In short, the district was a necessary evil, 



ONWARD, CHRISTIAN SOLDIERS 57 

a bulwark against those goatish demons that if not exorcised by fallen 
women would spend themselves beneath respectable roofs. 

There was, of course, dissenting opinion, most of it originating along 
moral lines but some of it arising from a growing awareness that the women 
who worked in the district came primarily from poor families and that their 
subjugation by the likes of Charles G Jones was the final indignity in a 
process that began when they were dislocated from the good earth and 
forced to toil in factories. In the Men and Religion Forward Committee, this 
position had found its champion. The group, which included not only Bible- 
thumping jackdaws but high-church divines and wealthy capitalists (princi- 
pally John J. Eagan, owner of the American Cast Iron and Pipe Company of 
Birmingham, and Marion Jackson, an Atlanta lawyer), had been looking for 
a way, in one member's words, "to join with others in bringing the power of 
the gospel to bear upon the active personal and social troubles of [the] 
community." In February 191 2, Jackson and Eagan had attended a conven- 
tion of like-minded souls in New York. There, the men had heard the fiery 
activist Jane Addams— author, mistress of Chicago's Hull House and the 
most influential social worker of the day— address the evils of prostitution 
and the economic causes underlying it. Suddenly, the path became clear. 

On June 15, 1912, Atlanta's Men and Religion Forward Committee inau- 
gurated its campaign against "The Houses in Our Midst." The campaign 
took the form of prominent weekly ads in all of the city's newspapers. The 
ads challenged citizens to shut down the restricted district, pointing out the 
links between the vice lords and the politicians ("Woodwardism," the pox 
was termed) and citing figures showing that prostitution spread venereal 
disease to wives and unborn children. 

By mid-September, the campaign against "The Houses In Our Midst," 
while prompting the formation of a special vice committee, had produced 
no results. The restricted district was so insulated that when the vice com- 
mittee—a member of which was said to own one of the brothels— issued its 
report, it didn't acknowledge that the district even existed. Yet far from 
being discouraged, the Men and Religion Forward Committee stepped up 
its attacks. Soon, a drawing of a gorilla wearing a visored police cap labeled 
"Protected Vice," wielding a billy club labeled "Public Indifference," and 
clutching a naked young girl against his hairy thigh began topping the ads. 
The illustration— captioned "The White Slave"— was, considering its pur- 
pose, oddly alluring. The swell of the child's bosom and the curvature of her 
bottom could just as easily have spoken to the satyr as to the prig. But the 
message was plain enough not to be lost on its intended audience: Chief 
James Litchfield Beavers. 

The Men and Religion Forward Committee knew its man. At 47, the 
slightly built Beavers was equal parts bluenose and warrior. Known to 



58 AND THE DEAD SHALL RISE 

friends as "Litch," he had been raised a pious Presbyterian in Clayton 
County a few miles south of Atlanta. A 23-year department veteran, he'd 
worked his way up from patrolman to sergeant to captain. Only Wood- 
wardism had slowed his steady climb. Referring broadly to the setback, the 
Georgian noted: "When the Woodward administration went into office, 
heads were lopped off freely. Sergeant Beavers went back in the ranks." 
Beavers's rise, however, had merely been delayed, and during one of Wood- 
ward's descents into the bottle, he'd resumed his ascent, becoming chief in 
1911. 

On the morning of September 24, 1912, Beavers sent out notices giving 
landlords of the houses in Atlanta's midst five days to shut down and pros- 
titutes an equal amount of time to vacate. Reported the Georgian: "The 
action of Chief Beavers came with the suddenness of a thunderclap, and its 
effect was cyclonic." 

By the next day, Atlanta was in an uproar. On the one hand, the district's 
advocates were furious. Jimmy Woodward, campaigning for reelection, 
declared: "It was a bad mistake to scatter those people over the city in 
respectable neighborhoods. The social evil question should be handled with 
good common sense, not fanaticism." Yet members of the Men and Reli- 
gion Forward Committee were ecstatic, amending that day's "Houses in 
Our Midst" ad to proclaim: "Thank God for a man who dares to do his duty. 
The credit should be given to Chief Beavers." Soon, clergymen were can- 
vasing the restricted district, offering girls opportunities to make an "honest 
living" and boasting of a $10,000 fund set up for that purpose. Meanwhile, 
Charles C. Jones was also touring the neighborhood, distributing $100 bills 
to his madams and brandishing a list of alleged brothels in other parts of 
town that he claimed had been ignored by Beavers because they paid graft 
to the police. 

That a deadly battle had been joined became apparent two days after the 
crackdown when a madam named Nellie Busby was found in one of the dis- 
trict's houses with a knife plunged into her heart. "Dramatic Suicide Marks 
Clean-Up," boomed the headline, yet the woman's demise was suspicious. 
Not only did officers discover an untouched meal and an unopened bottle 
of beer sitting on the table in her room, but by her body, they found a note 
that challenged all credulity: 

This is the end. They have ordered me to close my house, and I have 
nowhere to go. I might as well die . . . Tell Chief B. to go to hell. He's the 
cause of this. 

Who killed Nellie Busby was a mystery, yet the answer to the question of 
why was obvious— money. Just how lucrative the houses in Atlanta's midst 



ONWARD, CHRISTIAN SOLDIERS 59 

were is uncertain, but in a city whose railroads poured thousands of 
salesmen into Terminal Station daily, such a business surely produced a 
windfall— and the women were only part of it. Since 1908, when Georgia 
outlawed the sale of alcoholic beverages, Atlanta had been dry. While bar- 
keeps could sell near-beer, no one could legally sell whisky. (No one, that is, 
except proprietors of licensed locker clubs, which usually catered to the rich 
and included such elegant dives as the Piedmont Driving Club.) There 
were, however, myriad illegal "blind tigers." Generally, these speakeasies 
took the form of back rooms frequented by Negroes and crackers. Yet they 
also included the restricted district's houses. Charles C. Jones was both 
whoremaster and bootlegger. So while members of the Men and Religion 
Forward Committee may have viewed Beavers as a crusader, men like 
Jones viewed him as a threat to a distillery of illicit profits, and they would 
not have shed a tear had Nellie Busby's death been laid at his doorstep. 

Oddly enough, one of the few Atlantans who stood above the fray was 
the one who started it— Chief Beavers. In interviews, he was relaxed and 
confident. "I'm enforcing the law, that's all," he told reporters. "The law 
plainly says that such places shall not exist. I intend to wipe them out." If 
Charles Jones defied him, he vowed to lead demolition teams into the dis- 
trict and raze it. Thanks to the support of the Men and Religion Forward 
Committee, Beavers believed he could back up such talk. And he could. 
Within the allotted period, the houses of Mechanic Street were shuttered. 

The effects of Beavers's action were immense but contradictory. The 
most immediate beneficiary was the chief himself. By the time of Mary Pha- 
gan's murder, he was among the most visible law enforcement officials in 
America. At the 1913 convention of the International Association of Police 
Chiefs in Washington, D.C., Beavers delivered a much quoted address 
detailing the interests he'd battled and boasting that in the months since the 
district's demise, crime in Atlanta had decreased "fully one-third." Back 
home, however, many remained skeptical. Not only had Woodward been 
reelected over a pro-Beavers candidate, but the papers were brimming with 
stories alleging that prostitutes had infested "good" neighborhoods. In a 
widely reported incident, two preachers in town for a convention claimed 
they were accosted ten times in one night by streetwalkers. 

Yet despite such incidents, the Atlanta Police Department was generally 
viewed as a crusading force that had stood up against vice. That this holy aura 
had little more to do with justice than the disreputable practices for which 
175 Decatur Street was also renowned was not a subject of much discussion. 



Whatever confusion had paralyzed the Atlanta police on Monday regard- 
ing the Phagan investigation had by late Tuesday morning been replaced by 



60 AND THE DEAD SHALL RISE 

a newfound certitude. Around 11:30, Detectives John Black and B. B. 
Haslett arrested the man they were now convinced had committed the 
crime— Leo Frank. The officers took Frank into custody at the pencil fac- 
tory, giving him just enough time to grab a pocketful of cigars and say good- 
bye to his employees, many of whom were in tears, before packing him into 
the chiefs limousine and rushing him to headquarters. There, a mob of pho- 
tographers and reporters was waiting. As he was being whisked inside, 
Frank made a brief statement: 

I am not guilty. Such an atrocious crime has never entered my mind. I am a 
man of good character and I have a wife. I am a home-loving and God- 
fearing man. They will discover that. It is useless to detain me, unless for 
investigation and for information I might be able to give. 

Then he disappeared into 175 Decatur Street. 

The detectives' certitude had been born in an increasingly febrile envi- 
ronment. Ibesday morning, the Constitution had upped the reward ante 
and put Chiefs Beavers and Lanford on notice. In a biting editorial head- 
lined $1,000 reward, the sheet declared: 

The detective force and the entire police authority of Atlanta are on 
probation in the detection and arrest of this criminal with proof. To justify 
the confidence that is placed in them and the relation they are assumed to 
hold toward law and order, they must locate this arch-murderer. 

All Atlanta, shocked at a crime that has no local parallel in sheer horror 
and barbarity, expects the machinery of the law to be sufficient to meet the 
call made upon it. If ever the men who ferret out crime and uphold the law 
in Atlanta are to justify their function it must be in apprehending the 
assailant and murderer of Mary Phagan. 

Fidelity to oath and pride of reputation should be sufficient incentive to 
the detectives to insure their solution of this mystery, but as an added 
incentive . . . 

The Constitution offers $1,000 . • . 

Not to be outdone, the Georgian saw the Constitution's bet and raised it, 
sparking a fund drive that by midday had brought the reward total to 
$1,800— $100 of which had been donated by none other than Charles C 
Jones. 

Meanwhile, in Marietta Ibesday morning, remarks made at Mary 
Phagan's funeral— which the Georgian covered in an extra available on 
Atlanta's streets almost instantaneously— put even more pressure on the 
police. The ceremony was conducted in a weathered wood-frame Baptist 



ONWARD, CHRISTIAN SOLDIERS 6l 

church that perched atop a raw, red-clay bank. The Phagans— mother Fan- 
nie, sister Ollie, brothers Joshua, Charlie and Benjamin and stepfather John 
W. Coleman— were consumed by grief. Indeed, the family was so over- 
wrought that pallbearers had to be picked at random on the grounds. As the 
white, carnation-banked casket was carried in, the choir sang "Nearer My 
God to Thee," and from that time on the incessant sound of muffled sob- 
bing filled the air. 

Yet for all the soulful lamentations, the obsequies were dominated by 
cries for retribution. The Reverend T.T.G. Linkous, ordained in the hard- 
shell Christian denomination and the Phagans' pastor during their years in 
the little mill town of Eagan, prefaced his remarks by praying that "we may 
not hold too much rancor in our hearts— we do not want vengeance." But 
once the preacher caught fire, such pleas vanished in an eruption of sul- 
phurous gustings: 

We pray for the police and the detectives of the city of Atlanta. We pray 
that they may perform their duty and bring the wretch that committed this 
act to justice. We pray that the authorities apprehend the guilty party or 
parties and punish them to the full extent of the law. Even that is too good 
for the imp of Satan that did this. Oh, God, I cannot see how even the devil 
himself could do such a thing. I believe in forgiveness. Yet I do not see how 
it can be applied in this case. I pray that this wretch, this devil, be caught 
and punished according to the man-made God-sanctioned laws of Georgia. 

At the cemetery, the angry talk subsided. As the Reverend Linkous, him- 
self now holding back tears, looked heavenward, the first shovelful of dirt 
hit the casket and Mary's mother fell to her knees, crying: "Goodbye, Mary. 
Goodbye. It's too big a hole to put you in. It's so big, and you were so little." 

The Georgian, of course, retailed all these sad details, but it headlined 
the most incendiary angle, the one aimed directly at 175 Decatur Street: 

PASTOR PRAYS FOR JUSTICE AT GIRL'S FUNERAL. 

No single development had persuaded Chiefs Beavers and Lanford that 
Leo Frank had murdered Mary Phagan. Instead, to the cumulative weight 
of Sunday's suspicions and Monday's misgivings had been added several 
last factors that tipped the scales against the superintendent. First, by Tues- 
day the police had all but dropped charges against two men who just the 
day before had seemed prime suspects. One of them— handsome Arthur 
Mullinax— had been the victim of a case of mistaken identity. Not only had 
Mullinax's sweetheart provided her beau with a convincing alibi, but his 
accuser had proved to be a myopic meddler. Edgar Sentell, who'd claimed 
to have spotted Mullinax escorting Mary along Forsyth Street Saturday 
night, had received a medical discharge from the navy three weeks earlier 



62 AND THE DEAD SHALL RISE 

due to poor eyesight. James M. Gantt had also been victimized by a mis- 
leading source— his sister. Despite Mrs. F. C. Terrell's assertion that she 
hadn't seen her brother in a month, he had, as he'd insisted, been home the 
night of the crime. Frightened and according to her husband not well, 
Gantt's sister, hoping to keep the family out of the matter, had lied to offi- 
cers. Though vexing aspects of Gantt's story— his attraction to little Mary, 
his Monday trip to Marietta— were left unresolved, he would soon be freed. 

So two key suspects had been eliminated. But it wasn't the diminishing 
of the ranks so much as what the diminishing suggested that had further 
pointed the finger at Frank. It was now plain that reports placing Mary Pha- 
gan on Atlanta's streets Saturday night were fictitious, that in truth, after 
receiving her wages, she'd never left the pencil factory. Unless some new 
figure appeared upon the stage, Frank was and would remain the last 
person to admit having seen the girl alive. 

Equally important in hardening the case against Frank had been a late- 
Monday afternoon meeting at the National Pencil Company offices be- 
tween Frank and assistant factory superintendent N. V. Darley and Harry 
Scott, second in command of the Atlanta branch of the Pinkerton Detective 
Agency. 

Frank had arranged the get-together almost as soon as John Black and 
B. B. Haslett had finished searching through his dirty laundry. He had 
phoned a trusted coworker, assistant superintendent Herbert Schiff, and 
instructed him to engage a private investigator, "preferably a Pinkerton 
detective." Later, Frank would assert that his only motivation had been a 
desire to "assist the city detectives in ferreting out the crime, as an evidence 
of the interest in this matter which the National Pencil Company was tak- 
ing." Frank's rationale may have been as stated, but measured against the 
Pinkerton firm's reputation, it rang somewhat hollow. By 1913, the detec- 
tive agency that had come to prominence protecting presidents and battling 
black-hatted hombres had evolved into an ex-officio standing army for 
American business. Supplier of strikebreakers and infiltrator of unions, the 
firm specialized not so much in investigating crimes as in safeguarding 
industry. The Pinkertons were just the people a company official hoping to 
stave off scandal would have specified. 

Yet where Frank may have harbored a hidden agenda, Scott brought 
with him an undeniable conflict of interests. A college-educated Pennsyl- 
vanian who before moving to Atlanta in 191 1 had worked in the agency's 
Philadelphia branch, Scott was smooth-shaven, pudgy and could even have 
been termed baby-faced were it not for his sharp nose and button eyes. But 
while the 27-year-old detective looked the part of the archetypal Pinkerton 
operative and thus the antithesis of the rough old cobs at headquarters, he 



ONWARD, CHRISTIAN SOLDIERS 63 

was closely tied to the police. Private investigators operating in the city 
were required to submit duplicate copies of their reports to the depart- 
ment, even if the documents implicated a client. This much Scott would 
reveal to Frank. What he would not reveal, however, was that his allegiance 
to the force went deeper than the statutes required, that indeed, one of his 
best friends, someone with whom he often worked in tandem, was the indi- 
vidual who from the outset had believed Frank guilty: Detective John 
Black. 

It would have been hard to find men at greater cross purposes than the 
ones who'd sat across from each other Monday afternoon in Frank's office. 
As Scott would later testify, Frank had opened the conversation by confid- 
ing: "John Black [seems] to suspect me of the crime." That said, the superin- 
tendent had repeated his version of events. Generally speaking, this was the 
same narrative he'd given the police, but it did contain several new wrin- 
kles, each of which had an influence on the investigation. 

First, Frank— according to Scott's account— had gone out of his way 
to implicate James Gantt. As the Pinkerton operative would subsequently 
testify: 

He [Frank] stated during our conversation that Gantt knew Mary Phagan 
very well, that he was familiar and intimate with her. He seemed to lay spe- 
cial stress on it at the time. He said that Gantt had paid a good deal of 
attention to her. 

To Scott, Frank's familiarity with Gantt's interest in little Mary raised a 
troubling question: How could a man who on Sunday had told John Black 
that he did not know the victim have by Monday become an expert on her 
suitors? 

Second, Frank had provided Scott with a newly discovered piece of 
information: On the day of the crime, an unidentified Negro had been spot- 
ted in the factory. As the superintendent would later put it: 

I told him [Scott] something which Mr. Darley had that afternoon commu- 
nicated to me, viz.: that Mrs. White had told him that on going into the fac- 
tory at about 12 o'clock noon on Saturday, April 26th, she had seen some 
negro down by the elevator shaft. Mr. Darley had told me this and I just 
told it to Mr. Scott. 

Scott would subsequently confirm that Frank had apprised him of this news, 
but at the time, the Pinkerton man had either accorded it no importance 
(he didn't mention it in his report) or deemed it inconvenient, and for 



64 AND THE DEAD SHALL RISE 

weeks, the possibility that an unknown party had been lurking in the build- 
ing would go unexamined by the police. 

Following an hour's discussion, Frank and Darley had given Scott the 
grand tour. Through the metal department, down the scuttle hole, into the 
basement, out the back door, up the alley and around to the Forsyth Street 
entrance the three had walked. As darkness fell, they'd stood in front of the 
building, discussing the Pinkerton Agency's rates. After agreeing on a deal, 
Frank returned to 68 East Georgia Avenue for the last evening he'd ever 
spend at home. As for Scott, it is uncertain where he passed Monday night, 
but what is certain is that before he saw Frank again, he'd seen John Black 
and that when Black and Haslett arrived at the factory to arrest Frank, 
Scott was with them. 

Of all the elements that had persuaded the detectives that Frank was the 
culprit, however, none had been more important than the shifting view of 
Newt Lee's role in the affair. By Ibesday morning, the police had pegged 
the night watchman as both Frank's accomplice and his patsy. 

As best as can be determined, the notion that Lee and Frank were in 
cahoots had first been articulated late Monday by one of Newt's former 
employers, T. Y. Brent. The police, hoping that Brent could help them bridge 
the gap between the night watchman's denials of guilt and their certainty 
that he had been involved, had allowed him to assist in quizzing Lee. Near 
the interrogation's conclusion, Brent had experienced an epiphany: 

"I know what's the trouble," Brent had exclaimed. "Someone you are 
faithful to killed that girl. You know all about it. I wouldn't be surprised if 
you didn't have a hand in it yourself. You don't want to tell because you 
want to shield whoever murdered her. I'm going to tell you this— it's just a 
question of loyalty or your neck. You can't keep but one." 

" Yessir, Mr. Brent; that's a fact. I know that," Lee had replied. 

[Lee's] lips were trembling and he shifted nervously. His questioners 
waited eagerly for an expected confession. The negro checked himself and 
recovered but the police are confident of their suspicion. 

In a predawn grilling Ibesday, Detective John Black had revisited the 
issue. "We know you did not do the murder," he had assured Lee. "We know 
you are guiltless of the whole affair. But we know that you know exactly 
who did it and that you are protecting that person." 

Ibesday's Journal had intensified the detectives' need to make the 
connection between Frank and Lee by linking Lee to the case's greatest 
mystery— the authorship of the murder notes. The paper had engaged sev- 
eral bank officials to study the missives. While none of these men were 
trained experts, the Journal, taking its cues from the Georgian, had not let 



ONWARD, CHRISTIAN SOLDIERS 65 

such shortcomings stand in its way, unequivocally proclaiming in a front- 
page screamer: 

THREE HANDWRITING EXPERTS SAY 
NEGRO WROTE THE TWO NOTES FOUND BY BODY OF GIRL 

Beneath these lines, the sheet reported: 

Through its own investigations the Atlanta Journal has proven conclu- 
sively that Newt Lee, the negro night watchman for the National Pencil 
company, either himself mistreated and murdered pretty Mary Phagan, or 
that he knows who committed the crime and is assisting the perpetrator to 
conceal his identity. 

Locked in this negro's breast is the key to the murder mystery that has 
shocked the entire south. 

Dovetailing with the investigators' evolving theory that Lee was trying 
to protect Frank was the simultaneously evolving theory that Frank was 
trying to implicate Lee. This idea had first occurred to the police Monday 
morning after the superintendent reversed himself regarding the punches 
on Lee's time slip. But from there, it had gone underground, burrowing 
through a maze of unknown influences, not emerging until late Tuesday 
morning, minutes before Frank's arrest, when in one of the case's most 
bizarre turns, Detective Black had located yet another critical and enig- 
matic piece of evidence. 

Around n a.m. Tuesday, Black had let himself into Newt Lee's apart- 
ment at 40 Henry Street in a neighborhood near the Bellwood section where 
the Phagan family resided. Lee lived alone in the back of a shotgun house 
whose front rooms were occupied by several unrelated Negro tenants. In a 
metal trash drum Lee had transformed into a wardrobe, the lawman found 
an exceedingly suspicious item— a bloody linen shirt. The shirt was soaked 
to the armpits, and from the beginning, everything about it had seemed 
wrong. The goriest stains, for instance, were on the inside and appeared to 
have been purposely applied, as if the shirt had been mopped over a 
butcher's block. Moreover, the shirt looked freshly pressed, as if it had not 
been worn in weeks. All of which, the detective subsequently claimed, led 
him to conclude the shirt was a plant. Though Black never revealed how he 
decided Frank had planted it, an officer of the court would later assert: 

Frank was trying to point suspicion at Newt Lee ... He wanted his own 
house searched so that when the officers had gone through it and nothing 
had been found there, he could tell them to go and search Newt Lee's 



66 AND THE DEAD SHALL RISE 

house . . . this shirt was a plant and Frank's request was a ruse to get the 
police to search his house and then Newt Lee's house and thus throw sus- 
picion on the negro. The shirt was a part of the scheme. 

Whether or not any of this was so, Black— after dropping the shirt off at 
Decatur Street and intimating to the reporters gathered out front that there 
had been a major break in the case— had picked up Haslett and Harry Scott 
and raced to the factory. 



Frank's arrest, then, was the culmination of a journey that after beginning 
in the ambiguities of Sunday morning had proceeded along a road that 
had only grown curiouser and curiouser. Yet just because the superintend- 
ent was now in custody did not mean that the journey was at an end. In 
fact, Frank was barely through the station house doors before Black and 
Scott rushed him to Lanford's third-floor office. There, with Lanford and 
Beavers looking on, the detectives produced a bundle of butcher's paper in 
which they'd wrapped the just discovered shirt. Hoping to catch Frank off 
guard, the men pulled out a tiny bit of the shirt— a sleeve or the tail— and 
asked him if he recognized the fabric. As Frank subsequently recalled the 
moment: 

They showed me a little piece of material of some shirt, and asked me if I 
had a shirt of that material. I looked at it and told them I didn't think I ever 
had a shirt of that description. 

The reaction to Frank's answer went unreported, but he wasn't the only one 
subjected to the test. Presently Newt Lee was dragged in. After perusing the 
fabric, Newt said it resembled that of one of his shirts, whereupon the law- 
men ripped open the package, releasing, as Frank later put it, a "distinct 
odor of blood," and Lee confirmed that the garment indeed belonged to 
him. 

Moments after Lee identified the shirt, a commotion broke out in the 
stairwell leading to Lanford's office between an officer who'd been posted 
on the steps with orders to let no one pass and Luther Rosser, who, upon 
learning of Frank's arrest, had raced to Decatur Street. Forced to retreat to 
the lobby and phone upstairs, the lawyer, once he'd been granted passage, 
upbraided the man he held responsible. 

"I've got my opinion of how a chief of police should conduct himself," 
Rosser snorted upon greeting Beavers. "I had a perfect right to be admitted 
by that policeman downstairs. He told me he had orders to keep me down 
from here. He even called me by my name." 



ONWARD, CHRISTIAN SOLDIERS 67 

"I've got my opinion, too, of how a police department should be run," 
Beavers fired back. "I did not give instructions to keep you from this office. 
I ordered that the crowd be kept away." On that note, the clash— the second 
in as many days between the police hierarchy and Frank's lawyer— ended. 

When the interrogation resumed, Black ceded the floor to Scott, a turn 
of events that was too much for Frank to bear. "You're acting mighty 
funny," the superintendent snapped, expressing anger for the first time. 
"You were hired by me, if you remember! Why should you ask me such 
questions?" 

To which Scott coolly responded: "I was put on the case by my superiors. 
They were employed to catch the murderer. That was what I was instructed 
to do. If you are the murderer, then it's my duty to convict you." 

Near the end of the session, Lucille Frank— accompanied by her father 
and her brother-in-law Alexander Marcus— arrived at the station house. 
Denied admittance to Chief Lanford's office, the three were shown to a 
lobby desk. There, they waited. While Lucille maintained her composure 
long enough to express her belief in Leo's innocence to newsmen, she soon 
broke down. Later, she would recollect: 

I was humiliated and distressed by numerous people, maybe newspaper 
reporters, maybe somebody else, snapshotting me with hand cameras. I 
was besieged for interviews, and made thoroughly miserable in many ways. 

At some point, word reached Frank that Lucille was downstairs "weeping 
bitterly." Hoping, as he'd subsequently put it, to protect his wife from the 
"humiliation and harsh sight" of seeing him under arrest, he sent a message 
to her conveying his belief that he would soon be freed and asking her to 
return home, which she did. Her visit, brief as it was, made the papers, but it 
stuck in few memories. What was almost universally remembered, though, 
was the fact that two weeks would pass before Lucille again visited her hus- 
band. 

Shortly after Lucille departed, the interrogation came to a halt, and 
all involved spilled into the detectives' bullpen. According to the Jour- 
nal, Rosser "made light of the evidence against his client," claiming that 
the "police could hold him no longer than he, Mr. Rosser, was willing for 
them to." 

However, Detectives Black and Scott, talking to reporters on the other 
side of the room, made it sound as if Frank would not be released anytime 
soon. In joint remarks, the two flatly announced: 

We have sufficient evidence to convict the murderers of Mary Phagan.The 
mystery is cleared. 



68 AND THE DEAD SHALL RISE 

Whereupon Frank, so nervous and agitated that he could not stand without 
support, was led away. 

As darkness fell, Black and Scott, their boasts notwithstanding, knew 
there was much to be done. Though the detectives claimed they had the evi- 
dence to convict, that was far from so. Somehow, they had to make the cases 
against Frank and Lee mesh, or, barring that, firm up a case against one or 
the other. 

Initially, it was Lee upon whom the authorities exerted their powers of 
persuasion. As yet unrepresented by counsel, exhausted after three days of 
interrogation and terrified, old Newt was starting to wobble, and the detec- 
tives—or, more precisely, their surrogates— went after him with the cruel 
ingenuity Southern white men reserved for recalcitrant Negroes. 

Sometime after sunset, one Francis E. Wright— a salesman who had no 
connection to the case but believed himself to possess a knack for making 
blacks open up— was admitted to Lee's cell. After identifying the visitor as 
a minister, Detective Black and Agent Scott walked away, although along 
with a Constitution reporter, they stayed in earshot. 

"Newt," Wright began, "you haven't got long on this earth— only a few 
days. They're going to get you. They've already got you. What little time 
you've been allotted for life, you'd better put to good advantage." 

With that, Wright implored Lee to talk: 

There isn't but one thing to do. Tell all you know and cleanse your soul. If 
you die with a lie on your lips, you'll drop straight to perdition. 

Wright paused, then produced the texts with which he intended to in- 
duce a confession. The first was a copy of an extra the Georgian had pub- 
lished late in the afternoon topped by a page-one banner declaring: 

lee's guilt proved! 

Though Hearst's troops, in an uncharacteristic moment of restraint, had 
couched the screamer within the qualifying embrace of quotation marks, 
such a nicety was lost on Lee, who with increasing distress reread the line. 
Meanwhile, Wright pulled out his second text— a Bible. At the sight, the 
Negro, who was handcuffed to a chair, lunged forward, fell to his knees, and 
kissed the book's cover. Then, he plaintively vowed: "I swear 'fore God I 
didn't do it." 

That was good enough for Wright. After collecting his props, the coun- 
terfeit preacher emerged from Lee's cell and announced: "He's innocent as 
a babe." The investigators, however, weren't convinced. If the Lord was an 
insufficient truth serum, they'd try a stronger one. Which was evidently why 



ONWARD, CHRISTIAN SOLDIERS 69 

one Walter Graham, identified only as a "young white man," was allowed to 
take a derringer into a cell next to Lee's and fire it into the ceiling. Again, 
the same result. As the Journal related: "Lee was badly frightened by the 
report, but when visited shortly afterwards by the detectives he had not 
weakened." 

It was nearly midnight when Black and Scott decided that the only way 
to reach a resolution was to bring Lee and Frank together. So the detectives 
descended from the building's central bank of cell blocks to the private 
room adjacent to Lanford's office where Frank— due to the fact that he 
could afford to pay an off-duty officer to stand guard— was being held 
under the equivalent of house arrest. As Frank would subsequently recall, 
he'd just turned back the covers of his cot to go to bed when Black and 
Scott arrived and asked if they could talk with him. Frank agreed, accom- 
panying the men to a nearby room. There, he said, they made their pro- 
posal: 

In that room was detective Scott and detective Black and myself . . . They 
said: "Mr. Frank, you have never talked alone with Newt Lee. You are his 
boss and he respects you . . . We can't get anything more out of him. See if 
you can." I says: "All right, I understand what you mean; I will do my best," 
because I was only too willing to help. Black says: "Now put it strong to 
him, and tell him to cough up and tell all he knows. Tell him that you are 
here and that he is here and that he better open up and tell all he knows 
about the happenings at the pencil factory that Saturday night, or you will 
both go to hell." Those were the detectives' exact words. 

The detectives' exact words would later become a topic of dispute, but 
what is indisputable is that on the heels of Frank's conversation with Black, 
Lee was placed in the room with him— Black and Scott standing just out- 
side the door. 

According to Frank, his conversation with Newt was to the point but 
unproductive: 

They put Newt Lee into a room and handcuffed him to a chair. I spoke to 
him at some length in there, but I couldn't get anything additional out of 
him . . . Remembering the instructions Mr. Black had given me I said: 
"Now, Newt, you are here and I am here, and you had better open up and 
tell all you know, and tell the truth and tell the full truth, because you will 
get us both into lots of trouble if you don't tell all you know," and he 
answered me like an old Negro: "Before God, Mr. Frank, I am telling you 
the truth and I have told you all I know." And the conversation ended right 
there. 



70 AND THE DEAD SHALL RISE 

According to Black and Scott, however, things went differently. They 
said that while eavesdropping, they heard Frank— following a series of 
denials by Lee and using language that was all his own— tell his employee 
that if he kept it up "they'd both go to hell." Moreover, they said that it was 
not Lee but Frank who seemed on the defensive. As Scott would subse- 
quently assert: 

They were together there for about ten minutes alone. When ten minutes 
was up, Mr. Black and I entered the room and Lee hadn't finished his con- 
versation with Frank and was saying, "Mr. Frank it is awful hard for me to 
remain handcuffed to this chair," and Frank hung his head the entire time 
the negro was talking to him, and finally in about thirty seconds, he said, 
"Well, they have got me too." After that we asked Mr. Frank if he had got- 
ten anything out of the negro and he said, "No, Lee sticks to his original 
story." Mr. Frank was extremely nervous at that time. He was very squirmy 
in his chair, crossing one leg after the other and didn't know where to put 
his hands; he was moving them up and down his face, and he hung his head 
a great deal of the time the negro was talking ... 

The conflicting versions of what happened during the headquarters 
encounter between Frank and Lee would never be reconciled, but the ses- 
sion's effect upon the detectives would be readily apparent. Henceforth, 
their interest in Lee would diminish, leaving Frank as the lone suspect. 



FIVE 



A Good Name, a Bad Reputation 



The idea that the National Pencil Company was a business whose 
grindingly mechanistic surface masked a luridly bawdy core arose 
Monday morning after a group of officers making yet another 
sweep through the factory basement discovered what appeared to be a 
trysting place. Enclosed in the shallow plywood-walled storage shed that 
ran nearly the length of the cellar's south side and behind which Mary Pha- 
gan's body had been secreted, this dank, filthy compartment housed an 
improvised cot fashioned from wooden boxes and covered with crocus 
bags. Impressed into the sawdust floor surrounding the cot were numerous 
female footprints, a sight that briefly led the police to entertain the notion 
that Mary Phagan had been lured here, assaulted and then murdered. Even 
after abandoning this theory in favor of the one holding that the girl had 
been killed upstairs in the metal department, the lawmen continued to 
assert that the basement room was connected with the crime. As the Jour- 
nal was soon asking in an insinuating front-page teaser: "Was Factory Used 
as Rendezvous?" 

Tbesday morning, before such possibilities could be sufficiently ex- 
plored, the Georgian rushed into print with a story intimating that not only 
were employees conducting assignations in the factory's basement but 
they'd adorned their hideaway with decorative touches befitting a bordello. 
Beneath the headline nude dancers' pictures on walls, Hearst's min- 
ions reported: 

Pictures of Salome dancers in scanty raiment and of chorus girls in differ- 
ent postures adorned the walls of the National Pencil Company plant. 
They had been clipped from a theatrical and prize-fighting magazine. A 
more melodramatic stage setting for a rendezvous or for the committing of 
a murder could hardly have been obtained. 

Once again, the Georgian was in all likelihood exercising dramatic license. 
In fact, Leo Frank's friends would later contend that the only art on the 
premises consisted of a chaste calendar-girl illustration hanging in the super- 



72 AND THE DEAD SHALL RISE 

intendent's office, and no other Atlanta paper would pick up the pinup tale. 
Yet the larger point— that the plant provided a gamy setting for venery— 
was never really contested. Indeed, R. P. Barrett, the machinist who'd 
spotted the hair and bloodstains in the metal department, would tell the 
coroner's inquest that he'd "frequently" heard that the building was used for 
"immoral purposes." Meanwhile, V. F. Schenck, proprietor of the neighbor- 
ing Schenck Brothers' Metal Shop, would testify that "frolics were secretly 
held in the place." 

The National Pencil Company's emerging bad reputation could also be 
linked to its location. Though South Forsyth Street was lined primarily 
by reputable small manufacturers, and while it was paralleled two blocks 
to the east by luminous Peachtree Street, it was intersected two blocks to 
the south by a thoroughfare that conjured an altogether different image. 
Mitchell Street, which connected Georgia's capitol on the east with Termi- 
nal Station on the west, was home to numerous railroad hotels. Here, many 
of the prostitutes Chief James L. Beavers had driven from Charles C. 
Jones's houses only six months earlier had resumed their trade. Though it 
can't be said with certainty that any of these women had been receiving 
gentleman callers in the less than romantic confines of the factory base- 
ment, such a prospect was not unimaginable. As even Leo Frank, in his only 
public comment on the matter, told the Georgian: "In a plant this size, 
where 170 people are employed and the force is continually shifting, it is 
quite probable that some of them were low characters." Then, in a crack 
that could not have played well at 175 Decatur Street, the superintendent 
added: "Under our present conditions of morals in Atlanta with the segre- 
gated district abolished, these low characters have undoubtedly grown 
worse. That our janitor was bribed to allow them into the building is not an 
unbelievable suggestion." 

All this, however, was preamble. The development that convinced many 
Atlantans that something untoward had been going on at the factory and, 
more critically, intimated that Leo Frank was not only involved but had 
manifested a prurient interest in Mary Phagan, occurred at Wednesday 
afternoon's opening session of the coroner's inquest. Initially, the 15-year- 
old newsboy George Epps— one of the last witnesses to testify on this 
day— had not sparked much curiosity. The jury, which was meeting in the 
police commission's third-floor headquarters boardroom, had already 
heard from the expected headliners. Sergeants Dobbs and Brown and Offi- 
cer Anderson had described the scene that had confronted them in the 
plant basement Sunday morning. Newt Lee had reiterated his tale, in the 
process relating that he'd spent the two hours Frank had banished him from 
the premises Saturday afternoon at a patent-medicine show whose main 
attraction— a fire-eating Negro— drew throngs of credulous blacks to a cor- 



A GOOD NAME, A BAD REPUTATION 73 

ner beneath a downtown viaduct. The revelation had both leavened the 
mood and reinforced the view that Lee was too simple a soul to have gotten 
mixed up in a murder plot. 

After taking his place at a long cluttered table at the head of which sat 
Coroner Paul Donehoo, six jurors and Fulton County Physician J. W. Hurt 
and at the foot of which a battery of reporters and stenographers had dug 
in, Epps— a towheaded whippersnapper who struck the Constitution's man 
as "bright [and] quick witted"— grabbed the room's attention by declaring 
that on the day of Mary Phagan's death, he had ridden to town with her on 
the English Avenue trolley. During the trip, Epps said, the two had made a 
date to watch the Confederate Memorial Day parade and then attend a 
movie, the one hitch being that Mary first had to visit the National Pencil 
Company and pick up her wages, a prospect, Epps emphasized, that had 
frightened her: 

She began talking about Mr. Frank. When she would leave the factory on 
some afternoons, she said, Frank would rush out in front of her and try to 
flirt with her as she passed. She told me that he had often winked at her 
and tried to pay her attention. He would look hard and straight at her, she 
said, and then would smile. It happened often, she said. She told me she 
wanted me to come down to the factory when she got off as often as I could 
to escort her home and kinder protect her. 

Epps had little else to say (before stepping down, he described how he'd 
waited in vain for Mary on April 26 at their prearranged meeting place, a 
downtown drugstore), but little else was required. Here was a statement 
that would resonate with just about any mother or father who'd stood 
by helplessly as poverty had forced their daughters to forsake the stable, 
sexually constraining world of home for the fluid, sexually liberating— and 
menacing— world of employment. As one contemporary observer later 
noted: "No girl ever . . . go[es] to work in a factory but that her parents feel 
an inward fear that one of her bosses will take advantage of his position to 
mistreat her, especially if she repels his advances. This fear is readily con- 
verted into passion." Epps, in other words, had touched the nerve where the 
deracinated dirt farmer's pride in the past converged with his anxiety about 
the future, whetting his suspicion that child labor served all too often to 
gratify not only lust for profit but lust for flesh. 

Thursday morning, the Constitution splashed the charge atop its front 
page. Boomed the headline: 

FRANK TRIED TO FLIRT WITH MURDERED GIRL 
SAYS HER BOY CHUM 



74 AND THE DEAD SHALL RISE 

And the worst seemed still ahead. By noon Thursday, some 150 factory 
employees— many of them young girls adorned in their Sunday finery and 
palpitating with excitement— were waiting in the halls outside the police 
commission boardroom. Mary's coworkers had been subpoenaed to testify 
at the inquest's second session. But as the hours ticked by and the session 
did not start, it became clear that at least for now, the anticipated revela- 
tions would not be forthcoming. No one was surprised by the delay— no 
one, that is, who knew and admired Fulton County's coroner. 

At 35, Paul Donehoo was a careful man— he had to be. Left blind by a 
childhood bout of meningitis, Donehoo had managed through imagination 
and perseverance to achieve not only self-sufficiency but success. As a boy, 
he'd learned to make his way unassisted around Atlanta by training his 
ears to "hear solids," to distinguish between a wall and a door, empty 
streets and traffic. Later, he'd earned his law degree by convincing a fellow 
attorney-in-embryo to read cases aloud to him at night. As for the Georgia 
code and key legal precedents, he'd committed such matters to memory, 
turning his mind into a virtual law library. Though he'd served as coroner 
for just four years in 1913, he'd already won praise for his thoroughness. 
In fact, some people believed his disability actually aided him in his work. 
As the Journal reported: "Not being able to see with his eyes, he is not 
easily diverted from the point at issue and refuses to allow the witness to 
wander." Since in Fulton County the coroner— as opposed to the medical 
examiner— was responsible solely for conducting inquests, such grit was no 
small asset. 

While Donehoo initially appeared to have been as swayed by Epps's 
story as were others, by Thursday he'd reconsidered, and after consulting 
with Chiefs Beavers and Lanford, he decided to suspend hearings into the 
Phagan murder until the atmosphere cooled. In explaining the move, Done- 
hoo remarked: "I would not be holding this jury if I were satisfied or were 
reasonably certain as to the facts in our possession. A case like this, so 
deeply wrapt in mystery, cannot be solved in a day. And why should the 
public demand such great haste? It requires weeks and sometimes months 
before some of these mysterious cases can be cleared. It is only in the mag- 
azines that solutions are forthcoming in a day." 



In the wake of George Epps's testimony, two contradictory images of Leo 
Frank would begin to evolve. One flickered to life in the consciousness of 
Atlanta's working class, the cracker majority who identified with Mary Pha- 
gan. The other unfurled in the interior world shared by the city's German 
Jews, the privileged enclave that saw Frank as one of its own. In the first, 



A GOOD NAME, A BAD REPUTATION 75 

Frank was cast as a defiler of young girls. In the other, he appeared as an 
exemplary man and loyal husband. Over time, these notions would solidify 
into the irreconcilable points of view that would obtain during the long 
ordeal ahead. 



That many Atlantans had now begun to see Frank as a sexual predator is 
nowhere made clearer than in the files of the Pinkerton Detective Agency. 
Starting Thursday, May i— the day after Epps leveled his charge— at least 
two and occasionally as many as seven Pinkerton agents would be in the 
field. The operatives did not devote their efforts solely to exploring the alle- 
gations of impropriety swirling around Frank. The typed reports they sub- 
mitted daily to factory lawyers and to headquarters address every facet of 
the investigation. Still, the dossiers suggest that the Pinkertons— and, by 
extension, the Atlanta police, for the files prepared by the Pinkerton assis- 
tant superintendent Harry Scott invariably begin: "John Black and I then 
made an investigation"— devoted a large proportion of their energies to 
running down reports of Frank's purported sexual misconduct. For reasons 
that had to do with the fact that these dispatches contained material dam- 
aging to both Frank and the state, they were never made public and were 
indeed accessible to only a select few in each respective camp, not just at 
the time but down through the years. 

The names of the Pinkerton investigators who conducted the probe are 
referred to in the files merely by initials. But the agents who played the 
greatest roles are identifiable, and they must be mentioned, for their predis- 
positions may have colored their findings. H.S. was, of course, Harry Scott. 
Meanwhile, L.P.W. was L. P. Whitfield. At 31, with dark hair parted in the 
middle and plastered down on the sides, eyes swimming behind thick- 
lensed glasses and dewlaps folding into his collar, Whitfield came across as 
something of a Milquetoast. A native of the Civil War battlefield town of 
Kennesaw a few miles north of the Phagans' Marietta homeplace and a 
devout Baptist, he devoted his free time to his church choir. But harmless as 
he seemed, Whitfield possessed a strong will and a sharp mind. More impor- 
tant, he was Scott's rival. 

Typical of the kind of thing the Pinkertons looked into was a lead that 
had materialized Tiiesday or Wednesday when a trolley car conductor as- 
signed to the same car that had transported Mary Phagan to town April 
26 fished from beneath a seat a puzzling note addressed to the police and 
purporting to relate Frank's history of sexual advances toward the victim. 
L. P. Whitfield was the agent assigned to follow this thread, and eventually 
it led him to the Bellwood home of Helen Ferguson, the pencil factory 



76 AND THE DEAD SHALL RISE 

worker who'd informed Fannie and J. W. Coleman of their daughter's mur- 
der. In Whitfield's account of the Ferguson interview can be heard the terri- 
fied yet titillated voice of Atlanta's working girls: 

At 6:00 p.m., I met Helen Ferguson and secured a statement from her, 
Miss Ferguson stated that city detectives had allowed her to read a letter 
which was addressed to police headquarters, which letter stated that Mary 
Phagan told that Leo M. Frank had put his arm around her, and asked 
Mary if she wanted to take a joy ride of Heaven, and that Mary Phagan had 
asked Frank, "How?" to which Frank replied that he would show her some 
day. This letter was signed "A 13-year old chum of Mary." Helen Ferguson 
stated that Grace Hicks wrote this letter and that Grace resides at #100 
McDonough Road, Atlanta, Ga., as she knew Grace Hicks' handwriting. 

Grace Hicks, of course, had identified the body at the funeral home Sunday 
morning. 

But it wasn't just overwrought teenagers who were making such charges. 
One of the most compelling leads the Pinkertons looked into was provided 
by three men — O. S. Clark, H. B. Sibley and T. R. Malone; respectively a par- 
cel check clerk, a gateman and a security guard at the Terminal train sta- 
tion. Their story involved an alleged lover's spat they'd witnessed on the 
eve of the murder between a man who looked like Leo Frank and was tick- 
eted on Southern Railways to Washington, D.C., and a girl who resembled 
Mary Phagan. In his report, a Pinkerton agent known only as F.C.P. quoted 
Clark as telling him: 

At 11:00 a.m., I was on duty at the parcel check room at the Terminal 
Station, Atlanta, Ga., when I noticed a man about 5 ft. 10 in. in height, 
weight about 135 to 140 lbs., age 25 to 26 years, wearing a dark brown suit 
of clothes, black derby hat, brown hair, smooth shaven, slender face with 
sharp features, hazel eyes, wearing no vest, come to my window with a 
medium sized tan hand satchel to be checked. I checked same, and at the 
same time, I saw a girl, about 15 years of age, 5 ft. 4 in. tall, [wjeighing about 
no to 115 lbs., blonde, wearing a gray or lilac colored suit, rather well 
developed, with a full face and wearing a large hat, skirts that struck her 
legs just above her shoe tops, or where shoe tops would be, come from over 
near the negro waiting room, and meet the man. I noted that this girl was 
crying and talking to the man quite a good deal. Just before dismissing 
them from my mind, I looked on the tag which was on the satchel, I saw a 
name and an address, I have forgotten the name, but the address was the 
National Pencil Company, Atlanta. 



A GOOD NAME, A BAD REPUTATION 77 

From there, T. R. Malone picked up the story, informing F.C.R: 

Going back to Friday, April 25th, 1913— at 11:00 a.m. when the man and 
the girl left the gates and started towards the parcel check room ... a 
stranger to me, but a man whom Mr. Sibley called Mr. Hill, and myself 
talked about the couple. Someone remarked, "I wonder if they are man 
and wife." Mr. Hill spoke up and said, "No, her name is Mary— (paused) 
Mary,— something— Campbell, I think she used to live near Marietta, Ga. 
Her mother married again about one year ago. They live down here 
now." ... I understand Mary Phagan's mother's name is Coleman. I believe 
Mr. Hill meant to say Coleman. 

Like so many others, Clark and Malone, upon hearing of Mary Phagan's 
murder, had raced to Bloomfield's, and each swore that the body laid out 
there belonged to the girl they'd seen arguing with the man who fit Frank's 
description. Unlike the "joy ride of heaven" tale, this story could not be 
kept under wraps, receiving prominent play in all three papers. The Journal, 
in fact, gave it a double-deck banner: 

WITNESSES POSITIVE MURDERED GIRL WAS SAME WHO 
CREATED SCENE AT THE TERMINAL STATION ON FRIDAY. 

Even as the Pinkertons were trying to get to the bottom of the Terminal 
Station sighting, they were also looking into charges that prior to the mur- 
der, Frank had seduced and impregnated several of his female workers. 
Initially, most of the tips revolved around an erstwhile employee named 
Lena Bernhardt. To no avail, Harry Scott and John Black quizzed plant per- 
sonnel about the young woman. Finally, they called at the girl's residence. 
Reported Scott: 

Detective Black and myself then went to the home of Miss Lena Barn- 
hardt [sic], where we saw her mother, and questioned her closely, after 
which she stated that Mr. Frank was not the father of the child, but that 
a Mr. Cosby, who was at one time a chauffeur for J. Carroll Payne [an 
Atlanta lawyer], was responsible for same: That the matter had been aired 
in the courts and settled. 

Thus the connection between Bernhardt and Frank was dispelled, but as 
Whitfield's file for the same day— the day the hearings were scheduled to 
reconvene— makes plain, this was not the end of the accusations involving 
Frank's alleged peccadilloes: 



78 AND THE DEAD SHALL RISE 

The National Pencil factory was closed today, as a majority of the 
employees were subpoenaed to appear before the coroner's inquest, and I 
had Mr. Mendenhall [a tipster] to accompany me to Police Headquarters, 
where the inquest was being held, and Mr. Mendenhall designated two 
men to me, who he stated had informed him that Frank had been familiar 
with several of the girl employees and that they were afraid to testify 
against Mr. Frank, etc., I learned that these men's names are Ely Burdett 
and James Gresham. Mr. Mendenhall further stated that other men 
employees of the pencil factory had told him similar stories, but he did not 
see any of these men at the inquest. 

Sounding a similar note, Paul Whitaker, a former factory employee and 
friend of Mary Phagan's, subsequently told F.C.P.: 

I have . . . seen Mr. Frank ... at times when talking to some of the women 
employees, it seemed to me that he rubbed up against them a little too 
much. I noticed this often, but never said anything about it. 

One of the most ubiquitous reports connecting Leo Frank to Mary Pha- 
gan maintained that on the day of the murder, the victim had been accom- 
panied to the factory by another girl. While little Mary had gone inside to 
pick up her wages, this companion had waited outside until a man, presum- 
ably Frank, came to the door and told her Mary had work to do and would 
not be down for a while. F.C.P. was the Pinkerton operative assigned to 
check out the story, and his labors eventually led him to the home of its 
source, a certain Mrs. Holmes. Afterward, F.C.P. filed a report that though 
addressing only this one woman suggests how worked up the general popu- 
lace had become: 

I went to Mrs. Holmes' house at 2:30 p.m., but she was not in. She resides in 
South Decatur [an Atlanta suburb] near Whiteford Ave., and I remained 
there until she returned, at which time she informed me that she was a 
"dreamer" and that she did not know these things to be true, except that 
they "just came to her in her sleep." I observed that this old woman, who 
lives alone, is in a way an intelligent woman . . . She reads all the news about 
the Phagan murder case, and I think, she drew these conclusions and thinks 
of them so much that she does not know whether she read them or whether 
some one told her . . . that is, she is well read to the extent that she is crazy. 

Other allegations against Frank would also prove to be feverish figments 
of the sort produced by overexposure to Hearst journalism. Yet as the more 
credible leads the Pinkertons were pursuing suggest, not all the charges 



A GOOD NAME, A BAD REPUTATION 79 

could be so easily dismissed. Just because most were apparitions did not 
rule out the possibility that some were not. 



If Atlanta's good country people were suffering from what might well have 
been diagnosed as a collective sexual hysteria, then its German- Jewish 
elite were afflicted by the opposite side of the same malady, a collective 
sexual denial. To his coreligionists, Leo Frank was a collage of respectable 
emblems— Cornell grad, engineer, married man, president of the B'Nai 
Brith.That he could have been seized by those priapic impulses to which no 
male is immune, that he could have been tempted by any of the hundred- 
odd adolescent girls who gazed up at him each day from their worksta- 
tions—well, such a prospect was not to be considered. Or, if considered, it 
could not be articulated. Which is why when eminent local Jews began 
speaking out for Frank, their remarks were by necessity platitudinous. 
Hence the comments of B'Nai Brith lodge member Milton Klein— carried 
in all three newspapers on Friday, May 2— in response to George Epps's 
inquest testimony: 

Leo Frank, the superintendent and general manager of one of Atlanta's 
largest and most promising industries, spends two hours in his office on a 
holiday after generously relieving the watchman during these hours. His 
habits are regular and industrious and his life, while in Atlanta, is perfectly 
blameless in every respect. The terrible crime committed in his plant calls 
forth the closest scrutiny of Mr. Frank's relations with his 200 workmen 
and women. Only the highest words of praise and confidence in his charac- 
ter are heard on all sides. 

I have worked with Mr. Frank for years in various charitable organiza- 
tions and have ever found him the most polished of gentlemen, with the 
kindest of heart and the broadest of sympathy. To such an extent it is rec- 
ognized among his fellow lodge men that we have honored him with the 
office of president, which is the highest rank in our organization. He is a 
liberal supporter of many worthy enterprises. But his greatest work has 
been among his own employees at the factory. The first to report in the 
morning and the last to leave at night, every day and holidays, he has 
labored to build up a factory that in spirit and efficiency is second to none 
south of the Mason and Dixon's line. 

After the magnificent work he has done in his adopted home, shall we 
without consideration, emphasize every bit of gossip which unjustly and 
groundlessly connects him with this awful tragedy? No one seeks more 
fervently to discover the real perpetrator of this atrocious crime than Mr. 
Frank. 



80 AND THE DEAD SHALL RISE 

Leo Frank's image among Atlanta's German Jews, in short, arose not from 
their worst fears but from their best wishes— wishes, it must be added, born 
not of a week's worth of headlines and innuendo but of five years' worth of 
close association. Yet wishes still. 

From August 6, 1908— the day Frank had arrived in Atlanta and checked 
in to the Kimball House, a sprawling Victorian dowager at Peachtree and 
Decatur streets that for half a century was the city's landmark hotel— he 
had unfailingly impressed friends and business associates as considerate 
and responsible, albeit somewhat rigid. 

Away from the factory in those first months, Frank had listened to classi- 
cal music on his Victrola (he loved Strauss waltzes), read copiously (as a 
boy, he'd named his toy sailboats for the characters in James Fenimore 
Cooper's Leatherstocking Tales) and taught himself to play chess. His ap- 
proach to the game, as it was to so much else, was systematic. On the first 
page of a three-by-five pad, he neatly inscribed the title: "Chess Notebook 
No. 1." On the second, he appended his signature. On the third, in a hand- 
some draftsman's hand, he drew stylized pictures of all the chess pieces, 
adding a key that described their powers. Then, on page after meticulous 
page, he inked in chessboards on which he worked out such basic gambits 
as Scholar's Mate, the Ginoco Piano and Philador's Defense. Beneath the 
diagrams, he jotted down observations for future use. "Good against Rui 
Lopez attack," declared a typical entry. 

Orderly and inward, a stranger in the South, Frank had carapaced him- 
self behind a wall of work and intellect. This wall, however, was not without 
windows. Much as he might try to present himself as an exemplar of dispas- 
sionate reason, the factory superintendent was prone to fits of anxiety. Par- 
ticularly upsetting to Frank were his clashes with Sig Montag. While Frank 
was in charge of operations, Mister Sig controlled the purse strings, and 
he frequently called Frank into his office at Montag Paper Company to 
upbraid him for some financial shortcoming. Inevitably, the superintendent 
left these sessions shaking and fumbling for a cigarette. 

More than anyone, Lucille Selig had first perceived that Frank's brainy 
hauteur masked a fragile and uncertain young man. Which may explain 
why, when later asked what had initially attracted her to her future hus- 
band, she mischievously responded: "I liked to make him blush." 

Lucille had enjoyed numerous opportunities to bring the blood to 
Frank's cheeks. Upon checking out of his temporary residence at the Kim- 
ball House, Leo had rented a room from Lucille's widowed aunt Sophie at 
93 East Georgia Avenue just down the street from Emil and Josephine 
Selig's house at number 68. Within a week of moving in, he had been intro- 
duced to Lucille, and by early autumn of 1908, he was accompanying her to 
the theater and functions hosted by the city's German- Jewish elite. 



A GOOD NAME, A BAD REPUTATION 8l 

Lucille was twenty in 1908, and she was a series of contradictions. Raven- 
haired, sloe-eyed, olive-complected, she possessed a pretty face made 
prettier still because of her wit and intelligence. As the Georgian would 
subsequently declare: "She inclines to that perfect brunette type so often 
encountered in the women of her race. As a girl, which can not have been 
so very long ago, she must have been surprisingly lovely." Yet Lucille 's nat- 
ural beauty was marred by the fact that she was overweight. Had it still 
been the nineties, the age of the Rubenesque ideal, her plummy amplitude 
might have been regarded as an asset, but by the time Frank came into her 
life, the era of the hobble skirt and the Gibson Girl had dawned, and radi- 
ant though Lucille was, neither vivacity nor fashion could hide her zaftig 
form. 

Similarly, while Lucille was well connected— on her mother's side, the 
clan boasted the Temple's cofounder, on her father's, a line of increasingly 
prosperous businessmen— she herself had never been completely secure. It 
was Lucille's uncle Simon who owned West Disinfecting. Her father was 
merely a salesman in the family firm. As a consequence, after graduating in 
1906 from Girl's High School, where she'd acquired secretarial skills, 
Lucille had herself become one of Atlanta's working girls, first taking a 
stenographic position at the Jewish-owned Atlanta Paper Mills Company, 
then switching to a job in the same capacity in the regional offices of Swift 
Meats. 

Lucille was at once a perceptive young woman and a carefree girl who 
seemed caught between a desire to be taken seriously and a fantasy that she 
could enter into that life of beaus and balls that in the South was the 
province of her sex but was for her— because of her Jewishness, her weight, 
her self-awareness— unattainable. 

Romantic but practical, fun-loving but high-minded, blithe but tinged 
with sadness, Lucille was all these things, and all were apparent in the shop- 
ping lists she regularly jotted down. These lists— among them one dated 
January 23, 1909, a period when her fondness for Frank was deepening— 
provide an index to Lucille's dreams: 



Gibbs: $10.00 lining: $2.80 



shields: 


.25 


4 silk: 


.40 


cotton: 


.05 


bone: 


45 


Walshe: 


$1.00 


Wilson: 


$1.50 


Russell: 


$1.00 


Orpheum: 


•75 


Ma: 


$5.00 


suit- 


$17.25 


carfare and foolishness: 


$5.00 






Lycett: 


$1.00 


presents: 


$5.00 


Lena Jahoot: 


$1.30 


belting: 


.50 



lace: $5.00 



tie: .29 



82 AND THE DEAD SHALL RISE 

The prudent miss who did her own sewing, the debutante manque who 
splurged for Gibson blouses and new outfits, the dutiful daughter, the 
earnest face in the crowd at the theater, the lighthearted spirit who craved 
gaiety and laughter— such was the collection of hopes and aspirations that 
was Lucille Selig. Such was the child who fancied she could see through the 
Yankee intellectual delivered to her doorstep. 

For Lucille, Frank's arrival in Atlanta was a godsend— in part because so 
few Jews of marrying age resided in Dixie, a circumstance that during the 
years surrounding the century's turn gave impetus to an annual round of 
soirees in Atlanta and New Orleans whose purpose was to marry off the 
region's sons and daughters of Israel. But even if Lucille had been besieged 
by suitors, there can be little doubt that she'd still have fallen for Frank. As 
she would later recollect: "If there are such things as cases of 'love at first 
sight,' Leo Frank's love for me and my love for Leo Frank is a case in indis- 
putable point." On Valentine's Day 1909, Lucille gave Frank her heart— cut 
from red construction paper, his name emblazoned on it. 

On June 9, 1909, just ten months after his arrival in Atlanta, Leo pro- 
posed and Lucille accepted. The next morning, Lucille departed by train to 
spend a few days in Athens, Georgia, with her uncles, Simon and Bud 
Michael. The Michael brothers were eccentric twins whose success as mer- 
chants had enabled them to build adjoining Greek-revival mansions on 
one of the college town's most fashionable streets, Prince Avenue. For 
Lucille, visits with these cultured in-laws meant dances, teas and card par- 
ties attended by professors and students. It was as close to genuine South- 
ern bellehood as a Jewish girl from Atlanta could get. And it was here, in 
the midst of the University of Georgia's graduation festivities, that Lucille 
received her first love letters from her betrothed. Stilted in person, Frank 
was stilted in prose as well. Yet in a series of increasingly warm missives, 
he revealed himself also to be gentle, awkwardly gallant, dutiful, a mild 
gossip and social. Here is what Lucille— and, by extension, Atlanta's Ger- 
man-Jewish community— would come to believe was Leo Frank's true 
voice. 

On June 10— the very day Lucille left town— Frank stole some time at 
work to write: 

Tho' I have not heard so, I take it for granted that you arrived safely 
in Athens, and have by this time begun what I hope will be an enjoy- 
able sojourn. Enjoy yourself to the fullest. You would not believe it, but 
between the last sentence and the next one, 20 minutes have elapsed. Mr. 
Sig came in to talk to me— nuff said! 

Last night, I brought home some work from the factory and put in two 
hours work . . . 



A GOOD NAME, A BAD REPUTATION 83 

After I got thru ... I dropped over to your house to see the party. I am 
just as much delighted (?) with poker as ever . . . [The Seligs loved poker, 
whereas Frank preferred bridge.] We had a splendid day at the factory yes- 
terday. If we do as well to-day we will better last week's results. 

If you can spare a few minutes from the busy social hours of the Athen- 
ian day, I should be glad to be the recipient of an epistle. 

With best wishes to your folks in Athens and much love to you, I am, 
dearest, fondly your beau . . . 

On June 12, Frank wrote again, describing a Friday-night service he'd 
attended at the Temple and teasing Lucille about a date he'd made in her 
absence with Mister Sig's daughter: 

Your postal card was duly received and I was very glad to learn that you 
had begun your trip to Athens so auspiciously. 

Only a few minutes ago your mother phoned me that she had received 
a long letter from you and invited my perusal of same. I will drop in on my 
way to supper to-night. 

Last Thursday night, I paid a visit to the [Jacob] Haas's, who invited me 
for tomorrow supper. I accepted. Last night, I attended service at the Tem- 
ple and I enjoyed it very much. Dr. Marks [sic] was not there. A young man 
who is studying to be a rabbi conducted the service and delivered the lec- 
ture. The latter was a perfect jewel and was enjoyed by all. The Dr. had bet- 
ter look to his laurels. After service, I went home with Mrs. Straus and 
visited her daughter, Fae. 

Tonight, I am to take Harriet Montag to the Lyric. Are you jealous? . . . 

By June 14, five days after Lucille's departure, Frank's formal reserve 
had begun to dissolve. Yet even as he waxed emotional, he still could not 
resist correcting a lapse in his wife-to-be's prose style. Though in love, he 
remained himself: 

Your two letters of the 1 ith and 13th respectively brought gladness and 
joy to our midst and balm to our hearts. That we don't write longer letters 
is because matter fails to write about. 

I can't say that the evening of Saturday last, spent with Harriet was one 
of unmitigated pleasure. I tried my best, and the celestial denizens of 
heaven could do no more ... 

I don't expect that I will be very active socially this week. There is a car- 
nival for the benefit of the Educational Alliance [a Jewish charity] on the 
Hebrew Orphan's Home lawn, to which you would have gone if you would 
have been here. 



84 AND THE DEAD SHALL RISE 

At the Lyric is the "Milk White Flag," and at the Casino "Dr. Barry" 
with E. May Spooner in the leading role, as the histrionic attractions! 

Athens is not doing much for you intellectually! You are a past mas- 
ter in the use of slang. The latter is always the evidence of a paucity of 
vocabulary . . . 

Your kindly words for me are much appreciated and are treasured up 
on the scrolls of memory. 

I am not much on the sentimental letter writing. Read between the lines 
and see if you can feel the warmth of the writer's feeling for you . . . 

Yours for eternal happiness . . . 

Finally on June 16, two days before Lucille was to return home, Frank 
made his feelings evident: 

Was carried "transcendentally" to the seventh heaven of happiness and 
joy by the receipt of your letter of the 14th. Glad to learn that the good 
times keep up. I presume that the dance last Monday night was the best 
ever! If you wore the "pannelled effect" I'll wager you broke a few hearts. 
Mine is broken by "absent treatment." Everybody remarks how thin I'm 
getting. Are you affected that way? 

On Monday night I met your mother and Mr. and Mrs. Marcus at Ponce 
de Leon [an Atlanta amusement park]. We did not have such an ecstatic 
time. 

Last night I attended the lawn fete for the Settlement. I escorted Aunt 
Betty. After we got there she shifted for herself. I saw her home. They cer- 
tainly took the starch ($) out of me. I dropped $3.75 and have really noth- 
ing to show for it. 

Please let me know the time when your train is scheduled to arrive in 
Atlanta so I can greet the Goddess Athena . . . 

Leo Frank and Lucille Selig were married on November 30, 1910, at the 
Seligs' Georgia Avenue home, Dr. David Marx officiating and only family 
and a few close friends in attendance. The house, in the announcement's 
phrase, "was artistic with quantities of smilax and vases of pink carnations 
in all the rooms." A Cornell classmate served as Frank's best man. Lucille, 
who entered on the arm of her father, wore a white charmeuse satin gown 
trimmed in princess lace and pearl garniture. Orange blossoms were twined 
through her tulle veil, and she carried white roses and lilies of the valley. 

During the nearly two and a half years of their marriage, the couple had 
by every visible criteria been content. Yes, there were occasional disagree- 
ments about such innocuous differences as taste in music— Lucille was 



A GOOD NAME, A BAD REPUTATION 85 

drawn to ragtime, while Leo preferred symphonies. And yes, there had been 
a disappointment. Both husband and wife said they wanted a child, but thus 
far they'd failed to bring one into the world. (Seven decades later, Katie 
Butler, a former factory employee in her 80s, would tell her physician that 
she and Lucille were both pregnant during the early winter of 1913 but that 
Lucille had suffered a miscarriage. If Mrs. Butler's memory was reliable, her 
claim— while not clearing Frank of philandering charges— certainly sug- 
gests that he and Lucille maintained sexual relations.) Such matters aside, 
however, the Franks were evidently happy. "I suppose there are many hus- 
bands in the world as good as Leo," Lucille would later say, "and it may be 
therefore that I am foolishly fond of him. But he is my husband, and I have 
the right to love him very much indeed, and I do. If I make too much of him, 
perhaps it is because he has made too much of me." 



On the afternoon of May 5, following a four-day cooling-off period, Paul 
Donehoo reconvened the inquest. From the outset, it was clear that Leo 
Frank's character had become the central issue. He would be the session's 
only witness. Wary as the coroner was about rushing to judgment, he 
wanted to elicit a version of the facts before the factory superintendent had 
an opportunity to consider the effect those facts might have upon the pros- 
ecution. 

The Leo Frank who now faced Donehoo, the jurors and a horde of 
reporters bore no resemblance to the agitated man detectives had encoun- 
tered the morning Mary Phagan's body was discovered. Collected and 
articulate, dressed in a dark suit, he came across as the picture of responsi- 
bility and civility. He seemed everything that his friends and family believed 
him to be and nothing that his detractors suggested that he was. 

Donehoo started his examination with several inquiries into Frank's 
early work experiences and the circumstances that had brought him to 
Atlanta; then he shifted to the events of April 26. The superintendent pro- 
vided a seemingly thorough accounting of himself. Some of the details were 
new, most were not. In Frank's telling, his activities on the day of the mur- 
der appeared beyond reproach. He related how he'd arrived at work at 
8:30, met with his department heads, then walked to Montag Brothers at 
10:00 to pick up the mail, which was delivered to that address. He told of 
returning to his office at 11:00, dictating several letters to the stenographer 
Hattie Hall, greeting some casual visitors (among them Emma Clark and 
Corinthia Hall, both factory employees) and sorting through invoices. 
Then, he recalled how Hattie Hall and the 14-year-old office boy Alonzo 
Mann had departed around noon, leaving him alone until Mary Phagan 



86 AND THE DEAD SHALL RISE 

appeared at the door. In his recounting of this meeting, Frank made the ses- 
sion's first bit of news: 

About 12:10 or 12:15 this little girl who was killed came up and got her 
envelope. I didn't see or hear anyone with her. I didn't hear her speak to 
anyone who might have been outside. I was in my inside office working at 
the orders when she came up. I don't remember exactly what she said. I 
looked up, and when she told me she wanted her envelope, I handed it to 
her. Knowing that employees would be coming in for their pay envelopes, 
I had them all in the cash basket beside me, to save walking to the safe each 
time. The girl left. She got to the outer door and asked if the metal had 
come. I told her no. 

That Mary Phagan had inquired about the metal and Frank had answered 
negatively had not heretofore been publicized. 

Donehoo, however, did not linger here. (In all likelihood, the coroner 
already knew about the exchange, as Frank had mentioned it to Harry Scott 
during their initial interview, telling the Pinkerton man, according to his 
report, the same thing: "She asked about the metal, and I told her it hadn't 
arrived.") Thus the superintendent resumed his narrative of the day's 
events, reeling off the well-known story about directing Mrs. Arthur White 
to leave the factory, locking in her husband and another workman upstairs 
and departing himself. The only fresh details seemed trivial. As he was 
walking into the house for lunch, Lucille and her mother were rushing out 
to the opera's matinee. After eating a bite with his father-in-law, he lay 
down in the parlor and smoked a cigarette. Eventually, he said, he strolled 
back toward town, speaking to some relatives on the street before catching 
a trolley. With roads blocked for the Memorial Day parade, the car stopped 
on the edge of the business district, and he completed the trip on foot, wav- 
ing to a couple of employees in the crowd. 

Now came the rest of the familiar narrative: the return to work, the 
arrival of Lee, the encounter with Gantt. Frank reviewed it all again, 
although he did offer a new perspective here, placing a fact the detectives 
regarded with suspicion into a context that made it seem benign. The rea- 
son he'd never phoned Lee after hours before was that the night watchman 
had just started working at the factory two weeks earlier, having trans- 
ferred from a company-owned slat mill on the outskirts of town. Frank said 
he'd called Newt's predecessor frequently. 

Low-key and direct, Frank's testimony suggested that for him, April 26— 
save for the disruptions occasioned by the opera and the Memorial Day 
parade— had been just like any other Saturday: busy, ordered and book- 
ended by scenes of domestic tranquility. 



A GOOD NAME, A BAD REPUTATION 87 

Yet unremarkable as Frank's recitation had been, it would not end on a 
dull note. In response to a question from Donehoo asking if he had any last 
thoughts about the day, Frank dropped a bombshell, a piece of information 
that if true provided him with an alibi covering the sole gap in his April 26 
timetable, the 55-minute-span between the hour Mary Phagan left his office 
and the hour he departed for lunch. As the Constitution reported it: 

Frank . . . startled his audience with the declaration that he was visited by 
Lemmie Quinn, a pencil plant foreman, less than 10 minutes after the girl 
of the tragedy had left the building Saturday. 

According to Frank, Quinn remained only a couple of minutes, but the 
duration of his stay was irrelevant. What mattered was that he was there at 
the very time the investigators were beginning to theorize little Mary came 
to her terrible end. 

Even the unflappable Donehoo was jarred by the manner in which 
Frank threw out this fact as if he only just recalled it. How could you for- 
get such a thing? the coroner demanded. To this reasonable query, Frank 
replied that Quinn's visit had simply slipped his mind until the Monday 
after the crime when Quinn himself had reminded him. Donehoo did not 
raise the next logical point— why had Frank waited a week to divulge the 
information? Instead, as was his wont, he moved methodically on. 

After four hours of examination, Frank stepped down. In Donehoo, he'd 
found the perfect interlocutor, a man whose attention to detail enabled 
Frank, the archetypal engineer, to present a plausible blueprint of his April 
26 activities. More important, the coroner, for reasons that were never 
explained, did not inquire into the charges leveled by George Epps. Finally, 
even the revelation of Quinn's visit seemed to be a victory for Frank. 
This because Quinn, when contacted by reporters, confirmed Frank's story. 
No wonder that the newspapers' verdicts were unanimously approving. 
Boomed the headline atop the next day's Georgian: 

FACTORY SUPERINTENDENT'S STATEMENTS ON WITNESS STAND 
CONSIDERED DISTINCTLY FAVORABLE TO HIM 

And the Constitution, which had played up Epps's charges, now gave equal 
time to Quinn, running out the front-page caption: 

LEO FRANK INNOCENT, NEW WITNESS TELLS DETECTIVES 

The vision endorsed by the German-Jewish community seemed in the as- 
cendant. Frank had spoken, and as would shortly become clear, he intended 



88 AND THE DEAD SHALL RISE 

to speak no more. From this day forth, he would essentially disappear into 
his cell in the Fulton County jail, the lockup to which he'd been transferred. 
A forbidding institution usually referred to, in homage to the seven-story 
stone turret that guarded its main entrance, as the Tower, the facility would 
become Frank's new home. Here, he would exhibit such reticence (no inter- 
views, no responses to any further developments) that the press would 
christen him with the evocative moniker by which he would afterward be 
widely known— the Silent Man in the Tower. 



The debate regarding Leo Frank's character was far from over. When the 
Phagan inquest reconvened three days hence, it would be at the top of the 
agenda. Only now, the story would not be so pretty. During the interim, 
the detectives had located several young men and women— all either for- 
mer factory employees or relatives of former employees— who claimed to 
have seen a different side of Frank, and late on the afternoon of May 8, they 
filed into the police commission boardroom and one by one sat down at the 
head of the table. 

First up was an ex-worker named Tom Blackstock: 

"Do you know Leo M. Frank?" Donehoo began. 

"Yes." 

"How long have you known him?" 

"About six weeks." 

"Did you observe his conduct toward female employees in the pencil 
factory?" 

"Yes, I've often seen him picking on different girls," Blackstock re- 
sponded, describing how Frank would "rub up against" workers while pre- 
tending to instruct them in their tasks. 

Tom Blackstock, however, could do no more than say he'd observed such 
behavior. Following him were two girls who could say they had experienced 
it firsthand. 

Nellie Pettis was a poutingly pretty 14-year-old whose sister-in-law was a 
former factory employee: 

"Do you know Leo Frank?" Donehoo again began. 
"I've seen him once or twice." 
"When and where did you see him?" 

"In his office at the factory whenever I went to draw my sister-in-law's 
pay." 



A GOOD NAME, A BAD REPUTATION 89 

"What did he say to you that might have been improper on any of these 
visits?" 

"He didn't say exactly— he made gestures. I went to get sister's pay 
about four weeks ago, and when I went into the office of Mr. Frank, I asked 
for her. He told me I couldn't see her unless I 'saw him' first. I told him I 
didn't want to 'see him.' He pulled a box from his desk. It had a lot of 
money in it. He looked at it significantly and then looked at me. When he 
looked at me, he winked. And as he winked he said: 'How about it?' I 
instantly told him I was a nice girl." 

At this point, the coroner sharply interjected: "Didn't you say anything 
else?" 

"Yes I did," Nellie Pettis replied. "I told him to go to hell!" 

With that, the Pettis girl stepped down, only to be followed by another 
Nellie, 1 6-year-old Nellie Wood. Unlike her predecessor, the Wood girl was 
garishly, almost slatternly, made up. But no matter how crumpled the petals, 
she was still a flower of Southern womanhood, and her story helped to com- 
plete the emerging picture: 

"Do you know Leo Frank?" Donehoo inquired. 

"I worked for him for two days." 

"Did you observe any misconduct on his part?" 

"Well, his actions didn't suit me. He'd come around and put his hands 
on me when such conduct was uncalled for." 

"Is that all he did?" 

"No. He asked me one day to come into his office saying that he wanted 
to talk to me. He tried to close the door, but I wouldn't let him. He got too 
familiar by getting so close to me. He also put his hands on me." 

"Where did he put his hands?" 

"He barely touched my breast. He was subtle with his approaches and 
tried to pretend that he was joking, but I was too wary for such as that." 

"Did he try further familiarities?" 

"Yes." 

"What did you tell him when you left his employ?" 

"I just quit, telling him that it didn't suit me." 

In a chorus of young voices, then, Frank's briefly rising star was eclipsed. 
Declared the headline atop the next morning's Constitution: 

Sensational Statements Made at Inquest by 
Two Women, One of Whom Had Been an Employee, 



90 AND THE DEAD SHALL RISE 

Who Declared that Frank Had Been Guilty 

of Improper Conduct Toward His Feminine 

Employees and Had Made Proposals to Them 

in the Factory. 

The opposing images of Frank couldn't have been more polarizing— 
and, in a court of law, less relevant. Unless his lawyers took the almost 
inconceivable step of making his character the basis of the defense, his 
behavior prior to April 26, 1913— good or bad— would be inadmissible. 
Which was why, while it may have been easy to damn or praise Frank, it was 
not going to be easy to prosecute him. 



SIX 




hortly after dawn on Monday, May 5, the stillness of Marietta's 
municipal cemetery was broken by the sound of picks and shovels 
hitting home as gravediggers began disinterring Mary Phagan's 
body. At last, an autopsy was to be conducted. Six days after the funeral and 
nine after the murder, Dr. Henry Fauntleroy Harris, secretary of the Geor- 
gia Board of Health, had come up by car from Atlanta to establish the exact 
cause of the girl's death and end speculation regarding what, if any, other 
horrors she'd endured. 

Also present were Fulton County Physician J. W. Hurt, who'd made the 
initial cursory examination of the remains, and Coroner Donehoo, but both 
deferred to the 46-year-old Harris, in title and reputation Atlanta's fore- 
most medical figure. An Alabama native and 1890 graduate of Philadel- 
phia's highly regarded Jefferson Medical College, Harris had been on the 
cusp of a great deal of pioneering work, ranging from efforts to eradicate 
that bane of the South's rural population, pellagra, to cancer-cure experi- 
ments. A member of the American Association of Pathologists and Bacteri- 
ologists, the doctor, prior to moving to Atlanta, had served as an associate 
professor of pathology at Jefferson Medical. 

With the body lying on a blanket on the ground, Harris worked at a 
deliberate pace, probing wounds, trepanning the skull, taking tissue samples 
and removing the stomach. He had no fear of being observed, for the press 
had not been informed of the postmortem, and few people in Marietta 
knew anything about it. At noon, the procedure complete, the corpse was 
returned to its casket and to the earth. 

Despite the secrecy, the news that Mary Phagan's body had been disin- 
terred couldn't be kept quiet. An inevitability, as the examination had taken 
so long that Donehoo was tardy for the inquest's Monday afternoon ses- 
sion—the session at which Leo Frank testified. The late editions played up 
the story. Proclaimed the Georgian: phagan girl's body exhumed. But 
such headlines notwithstanding, little information regarding the autopsy 
was released. 

That details regarding the Phagan postmortem were hard to come by 



92 AND THE DEAD SHALL RISE 

was a tribute to the individual who had ordered the examination— Hugh 
Manson Dorsey, solicitor general of Fulton County. For a couple of days 
now, the impression had been growing that Dorsey intended to wrest con- 
trol of the probe from what he regarded as a bungling, leak-prone police 
force. As early as May i, in fact, he had told the Georgian: 

The investigation has been hesitating. All leads given to the police have 
not been brought out. No effort has been made to establish if the shirt said 
to have been found in the ash barrel back of Lee's home was Lee's. The 
handwriting tests on the notes have not been exhausted— in fact, hardly 
touched upon. The marks on the girl's body might lead to an extensive 
[examination] that has never been made. 

Had Dorsey been less politic, he could have continued his litany, adding 
to it the police's failure to keep the murder notes out of Harold Ross's 
hands, to secure the crime scene (countless gawkers traipsed through the 
plant the Sunday the body was located) or even to harvest such basic clues 
as the bloody fingerprints on the factory's basement door, which had 
remained in situ until the Tuesday following the killing when a private citi- 
zen had taken it upon himself to chisel them off, then deliver them to the 
station house. Yet the prosecutor knew he'd ultimately have to work in con- 
cert with Decatur Street, thus shortly after leveling his complaints, he'd 
summoned Chiefs Beavers and Lanford to the Thrower Building, the tem- 
porary home of Fulton County government. (The granite courthouse that 
to this day houses Atlanta's judicial system was in 1913 only partially com- 
pleted.) By session's end, Lanford, at least, had been placated. "He seemed 
pleased with our progress," the detective chief had told reporters. "He 
denied the circulated report that he was disappointed in the lack of evi- 
dence we had gathered." Though Beavers had emerged stony-faced from 
the gathering, there can be no doubt that Dorsey's gambit had succeeded, 
for Detectives John Starnes and Pat Campbell were soon assigned to his 
staff, and Harry Scott began briefing him regularly as well. As the mystery 
entered its second week, the Journal proclaimed: "Dorsey is probably the 
only man who is in touch with every phase of the investigation." 

In short, the Monday, May 5, autopsy of Mary Phagan marked the emer- 
gence of Hugh Dorsey as the central figure in the probe, a debut Dorsey 
made official later that day when, in the midst of the inquest's afternoon ses- 
sion, he negotiated his way through the packed police commission board- 
room and took a seat directly behind Donehoo, to whom he promptly began 
whispering suggestions. 

While no statute prohibited Dorsey from inserting himself into this early 



SKULDUGGERY 93 

phase of the investigation, it was almost unheard of in Georgia for a prose- 
cutor to assume an active role in a case until it reached the grand jury. Over 
the next days, the press would vigorously debate the appropriateness of the 
solicitor general's actions. Replying to grumbles that he'd exceeded his 
authority, Dorsey made no apologies. "The burden of convicting the perpe- 
trator of this horrible crime, whoever he may be, will fall directly upon my 
shoulders and I don't propose for that reason, if not for many others, to let 
it [the inquiry] drag along," he told reporters. Then, lest anyone doubt his 
resolve, he not only ordered Dr. Claude Smith, the city chemist, to examine 
the shirt found at Newt Lee's house and the blood spots discovered on the 
factory floor, but he orchestrated another dramatic raising of the dead. 

Around 2 p.m. on Thursday, May 7, Mary Phagan's remains were disin- 
terred for the second time in less than a week. The object of this latest 
autopsy would be both forensic and medical. Testifying to its dual purpose 
was the fact that Dr. Harris was joined at the grave site by an unidentified 
fingerprint technician. 

As before, a blanket on the ground served as the operating table, and 
also as before, Harris removed at least one organ. Moreover, he apparently 
snipped a few locks of hair from the body's head. This last action, the Jour- 
nal acidly noted, was necessitated by the fact that some hair taken by Dr. 
Hurt during his preliminary exam and "which was in possession of the 
police has been lost." It was the work of the fingerprint technician, however, 
that attracted the most curiosity. Reported the Constitution: "A chart was 
made of the cuts and bruises on the face and body and photographic plates 
were made of the fingerprints on the throat." Added the Georgian: "The 
fingerprints on the body were to be photographed and compared with the 
fingerprints of persons under suspicion." 

Most of what the press wrote about the second postmortem consisted of 
conjecture, for this procedure was shrouded in more secrecy than the first. 
Did the examination show that Mary Phagan had been raped, that her body 
had been mutilated? These questions— in references to "the crime that was 
taken for granted by all to have preceded the actual killing" and "wounds 
about the chest and shoulders"— darted in and out of the newspaper ac- 
counts, but confirmations were impossible to obtain. Harris, complying with 
Dorsey's instructions, refused comment, but even if the doctor had been so 
inclined, he would not have been ready to make a statement until he fin- 
ished his lab work— a task projected to take several weeks. Furthermore, 
when reporters contacted Newport Lanford,they learned that the detective 
chief hadn't been informed of the additional autopsy. Dorsey was securing 
his position in the classic manner— by managing the collection and flow of 
information. 



94 AND THE DEAD SHALL RISE 



To most Atlantans it was clear why Hugh Dorsey had taken command of 
the Phagan case— he needed a courtroom victory. During the nearly three 
years since he had been appointed the Fulton County solicitor general, 
Dorsey had shown an alarming propensity for losing high-profile trials. Just 
two weeks earlier, the city had watched gape-jawed as a jury acquitted 
one Callie Scott Applebaum of murder. Mrs. Applebaum— a lovely, albeit 
lethal, vamp— had been discovered in a locked hotel room with a dis- 
charged revolver, a tale involving a temporary blackout and a husband shot 
in the head. Yet counsel for the mysteriously widowed defendant had 
argued persuasively that Jerry Applebaum had died by his own hand. The 
verdict had been rendered on April 25 and thus dominated the front pages 
on the day of Mary Phagan's murder. 

The Applebaum decision was only Hugh Dorsey's latest defeat. In the 
spring of 1912, he had failed to convict Daisy Grace, an Atlanta society 
figure, of the attempted murder of her husband, Eugene. The Grace pro- 
ceedings—still fresh in Atlantans' minds— offered some worrisome paral- 
lels to the Phagan case. For starters, the Atlanta Georgian, just purchased by 
Hearst, had used the trial to give the city a first taste of yellow journalism. 
For another, the investigation had been marred by inept police work. Finally, 
the lawyer who'd successfully defended Mrs. Grace was Luther Rosser. 

No prosecutor, of course, wins every battle, but Dorsey had a way of los- 
ing that made Atlantans shake their heads. A case in point had occurred in 
December 1910 when he was bested in what had at first seemed an open- 
and-shut affair. The defendant, a black man named Charles Tanner, had 
been charged with stealing a suit of clothes from a pawnbroker. What made 
conviction appear certain was that Tanner was, in one reporter's phrase, "an 
unusual negro." To wit: He had twelve fingers, six on each hand, and as a 
consequence, his accuser had identified him "beyond a shadow of a doubt." 
But at the trial, the defense had tripped the solicitor up by calling Tanner's 
cousin Jonas to the stand. The Journal described the scene and its conse- 
quences: 

When the latter negro was commanded to hold up his hands, he was 
found to have six fingers on each hand like his cousin. The resemblance 
between the two was marked, and in the face of this freak evidence the 
case was dismissed. 

The Tanner debacle was not so much an example of Dorsey's bumbling 
as it was an incident that suggests that under his aegis the Fulton County 
solicitor's office lacked gravitas. (twelve fingers not sufficient iden- 



SKULDUGGERY 95 

tification, declared the Journal's headline.) It would have been impossi- 
ble to conceive of the episode having occurred during the lengthy reign of 
Dorsey's predecessor. 

For thirty years, Charles Dougherty Hill had towered over the Atlanta 
courts. A figure of unquestioned probity and rare humility, "Old Man 
Charlie"— as Hill had been respectfully known— had possessed an innate 
sense of fairness and a keen respect for the power that had been vested in 
him. When pondering a defendant's fate, he would keep in mind the words 
of the Scottish poet Robert Burns: "Who made the heart, 'tis He alone 
decidedly can try us." 

For all Hill's strengths, he had not been unflawed. His weakness for dis- 
tilled Kentucky sunshine had been pronounced and had produced its share 
of embarrassments. But he had possessed a nobility of spirit and a gift for 
expressing that nobility in words. So stirring a speaker had he been that on 
days when he was scheduled to give a closing argument, other lawyers 
posted runners at the courthouse, instructing them to phone as soon as he 
rose from his seat. It had been on such an occasion that Old Man Charlie 
had uttered his eloquently brief last remarks. 

While trying an inconsequential case on the afternoon of October 18, 
1910, Hill had suffered what would prove to be a fatal stroke. After col- 
lapsing, he'd found himself surrounded by concerned faces, one of which 
belonged to a Negro protege, a lawyer named Henry Lincoln Johnson. Link, 
as Johnson was known, had once practiced in Atlanta, but due to connec- 
tions with the Republican Party, he'd received a patronage job with the fed- 
eral government and had moved to Washington, D.C. Yet on this occasion, 
business had brought him back to Atlanta, and like any lawyer in town with 
some time to spare, he'd dropped by the courthouse to hear Old Man Char- 
lie. When Hill had realized that Link's was among the visages peering down 
at him, he'd murmured from somewhere deep inside: "Old friends come 
home in the evening." 

Three days later, 67-year-old Charles Dougherty Hill was dead, and 
within less than two weeks Hugh Dorsey had been tapped to take his place. 

Though Dorsey had been elected to office in his own right in 1912, his 
hold on the job was tenuous. Among reporters, the consensus was that the 
Phagan prosecution represented nothing less than a last chance for him. 

Hugh Dorsey was not, however, a man to be underestimated. The son of 
a distinguished jurist (Judge Rufus T. Dorsey, a post-Reconstruction state 
legislator), a graduate of the University of Georgia, matriculant to the Uni- 
versity of Virginia Law School (he'd failed to receive a degree, returning 
home after one year) and partner in his father's well-connected Atlanta 
firm— Dorsey, Brewster, Heyman and Howell— he possessed most of the 
requisite bona fides. 



96 AND THE DEAD SHALL RISE 

Dorsey was born in the small town of Fayetteville some thirty miles 
south of Atlanta, and he enjoyed nothing so much as acting the rube, pep- 
pering his conversation with folksy witticisms and rural pieties. Yet he was 
reared in the city, and his friends included his Jewish law partner, Arthur 
Heyman; his Jewish college roommate, Henry Alexander; and even Luther 
Rosser, whose son, Luther Jr., had recently married Dorsey's youngest sis- 
ter, Sarah. The fledgling solicitor was equally at home addressing a jury of 
poor dirt farmers or exchanging bons mots with the capital's elite, and in a 
state where a successful lawyer had to do both, this was a considerable 
asset. 

In the end, though, it was Dorsey's personality that made him a poten- 
tially formidable figure. His demeanor, while not quite supercilious, was 
cool and mockingly predatory. There was something sharp, watchful, raptor- 
like about him, and it showed in his face. Cowlick plastered upon a high, 
eggish forehead, eyes circled by the liver-stained rings that were a family 
characteristic, lips frequently twisted into an appraising smile, Dorsey bore 
a striking resemblance to a shrewd young owl. As unimpressive as his 
record was, he conveyed the distinct impression that he wasn't worried, that 
he was just awaiting the right moment to swoop down. With the discovery 
of Mary Phagan's body in the National Pencil Company basement, that 
moment had come. 



It quickly became apparent that it would not be easy for Hugh Dorsey to 
maintain control of the Phagan case. The difficulties facing him began to 
reveal themselves in the aftermath of what was ostensibly a triumph. On 
Thursday, May 8, the coroner's jury, following just ten minutes of delibera- 
tion, recommended that Leo Frank and Newt Lee be held for further ques- 
tioning. Yet in the days ahead, attention would focus less on this decision 
than on the admissions made by two of the inquest's final witnesses, John 
Black and Harry Scott. 

"Have you discovered any positive information as to who committed 
this murder?" Paul Donehoo had asked Black. 

"No, sir, I have not," the police department's star investigator had 
replied. 

To the same query, the Pinkerton agent had also answered in the nega- 
tive. While such admissions did not reflect directly on Dorsey, they did sug- 
gest that barring some startling revelation turned up by the autopsies, he 
had little to work with, sparking doubts concerning not only what sort of 
case he would take into court but whether he could even secure indictments. 

These doubts were given graphic incarnation in the Sunday, May n, 
Constitution. Beneath a front-page cartoon depicting the city as an angry 



SKULDUGGERY 97 

matriarch clutching a scroll labeled "Phagan Case" and glowering at a 
closed door labeled "Detective Dept.," the newspaper pointedly asked: "I 
wonder if they're all asleep in there?" With this cartoon, the Constitution— 
which had been editorializing against Decatur Street since the 1910 detec- 
tive department scandal— staked out what would become a consistent 
antipolice position. 

Meanwhile, misgivings concerning the status of the case also began crop- 
ping up in an altogether unexpected venue— the Georgian. In the sheet's 
May 11 editions, the political editor James B. Nevin dismissed the evidence 
upon which the coroner's jury had rendered its verdict as "horrible false 
details conjured up in some disordered brain hereabout . . . misinforma- 
tion, near-facts, pure falsehoods, and prejudice. Who then DID murder 
Mary Phagan? The question is almost as far from an answer today, I think, 
as it was when Mary Phagan's body was dragged to light." 

Nevin wasn't the Georgian's sole voice of protest. On this same mid-May 
Sunday, the paper unveiled a new columnist— "The Old Police Reporter"— 
assigned full-time to the Phagan affair. The identity of the pseudonymous 
scribe would remain a mystery, but in a supportive, albeit fatalistic, passage 
in his inaugural effort, he revealed a predisposition in Frank's favor: 

I cannot help but sympathize with Frank in being held as he is on the 
very slight evidence presented against him. At the moment, it would seem 
as though he were a victim of circumstance and that he would have to take 
the consequences that follow being the superintendent of the factory and 
the last person to have seen Mary Phagan alive. And consequences, as 
George Eliot said, are unpitying. 

Though the Georgian's slowly emerging pro-Frank stance may have 
owed something to its editors' doubts regarding the superintendent's guilt, 
it owed more to the Atlanta Jewish community's disatisfaction with the 
paper's initial coverage and the stir that the vocal expression of the disatis- 
faction created higher up in the Hearst organization. 

The Georgian's first-day performance had been but an appetizer. The 
courses that followed achieved the journalistic equivalent of a gluttonous 
orgy as Foster Coates ordered extra after extra. Indeed, the Georgian 
had wantonly heaped one intemperance atop another. The lee's guilt 
proved! headline had so agitated Atlantans that Mayor Woodward and 
Chief Beavers, fearing a lynching, put aside their differences long enough to 
issue a joint statement decrying the sheet's "sensational and misleading" 
reports. The paper had then insulted the city's Greek community by hypoth- 
esizing that since little Mary had been strangled and "the garrote" was 
favored among Mediterranean killers, suspicion should focus on the staff of 



98 AND THE DEAD SHALL RISE 

the Busy Bee, a Greek-owned diner frequented by pencil factory workers. 
Yet the Georgian's worst offense, the one that mobilized Atlanta's Jews, 
had come in the edition announcing Frank's arrest. It was there that Coates 
committed the cardinal sin of declaring an unconvicted suspect guilty. 
Above a photograph of Frank, the editor ran out a front-page banner flatly 
stating: 

POLICE HAVE THE STRANGLER 

As Herbert Asbury would later recall: 

Foster Coates made a blunder when Frank was accused of the crime 
and taken to Police Headquarters. He put an extra on the street, of 
course— and wrote a banner line for it which said without qualification 
that the strangler had been arrested! The type was even larger than we 
used when we tried to convince the citizenry that there was news when 
there was none. The line . . . had far-reaching consequences. 

The next morning, groups of Atlanta's Jews had begun arriving at the 
Georgian's newsroom. The complainants weren't the sort to be taken 
lightly. One party alone included Dorsey's partner, Arthur Heyman, and 
the insurance brokers Isaac and Arthur Haas, kin to the factory lawyer Her- 
bert Haas and descendants of a founding Atlanta family. According to 
Asbury, these pillars of Southern Jewry "said the Georgian had called 
Frank guilty before his trial and that it showed the existence of an organ- 
ized conspiracy to railroad him to the gallows . . . they raised the cry of per- 
secution and demanded that the editor denounce the police and insist on 
Frank's immediate release, declaring that he was being persecuted because 
he was a Jew." 

Whether the accusation of anti-Semitism had been justified at this 
moment is a matter of debate. Nonetheless, the following day, downtown 
merchants— many of them Jewish— began circulating a petition contending 
that the Georgian's extras had "aroused the community to a dangerous 
degree" and asking Coates to use restraint. Here again, a fine point must be 
raised— were the merchants' motivations as pure as they maintained? As 
Asbury would subsequently assert: 

After the discovery of the girl's body the storekeepers and other busi- 
nessmen rubbed their hands and chuckled a jovial Rotarian chuckle at the 
spectacle of crowds standing about staring at the headlines and the pic- 
tures; they thought so much excitement would bring people into town and 



SKULDUGGERY 99 

that business would be good . . . But business was not good; it was worse 
than it had been for many years. People did come into Atlanta, but both 
visitors and townspeople were so busy reading about the murder and 
enjoying their thrills over the pictures and the diagrams that they did not 
have time to buy anything. 

So after a little while the merchants began to complain; they asked 
Coates, in person and through the advertising department, to let the excite- 
ment subside a bit so their customers could be lured back into their stores. 

The merchants' pleas were heard— not just at the Georgian but through- 
out the city. The Journal, reeling from the Hearst sheet's performance, 
played the petition-drive story atop its front page beneath the headline: 

BUSINESS MEN PROTEST SENSATIONAL "EXTRAS." 

All of which explains why on May i, the same day the Constitution had 
headlined George Epps's allegations, the Georgian printed a banner pro- 
claiming: the supremacy of the law! Beneath this line, Coates per- 
formed a seeming act of editorial contrition: 

It should not be necessary to say that THE LAW of the sovereign State 
of Georgia IS SUPREME, that all branches of the judiciary have their 
proper functions and perform their duties in a legal, time-honored way. 

These trite remarks are published that the public may understand that 
trials by newspapers, by experts, so-called have no judicial functions and 
are valueless. 

Therefore, let everybody, rich and poor, high and low, of whatever race 
and creed, look to THE LAW for judgement in a dignified way and not to 
newspapers or sensation mongers for legal advice that has no basis in any 
law book. It is time to recall Browning's beautiful words: "God's in his 
heaven, all's well with the world." 

Coates was hardly repentant. Far from agreeing to temper his behavior, 
he had essentially absolved himself of responsibility. His line of thinking 
implied that words did not matter, that a newspaper could malign anyone 
so long as the courts sorted things out and the editor quoted poetry. As 
Asbury would later note: "Coates . . . was riding wild with the best story of 
his large experience and he refused to stop." In response, the city's Jewish 
business leaders put some steel into their objections. "The merchants began 
withdrawing their advertisements," Asbury wrote. "Some took them out 
immediately; others notified the paper that they would not renew their con- 
tracts. The Journal and the Constitution paid no attention to the demands of 
the Jews, and for a long time the Georgian ignored them also. But pressure 



100 AND THE DEAD SHALL RISE 

was soon brought to bear in New York . . . little by little the editorial and 
news columns of the Georgian began to veer toward Frank." 

Once the Jewish community's complaints reached New York, William 
Randolph Hearst would have been hard pressed to ignore them. Though 
Hearst liked to think of himself as someone who couldn't be bullied and 
while he had positioned the Georgian— with its anti-child-labor editori- 
als—as the people's paper, he was always aware of his political and financial 
interests. And he was always willing, as he'd done repeatedly elsewhere, to 
alter a paper's stance to protect those interests. When it came to the Geor- 
gian's coverage of the Phagan case, Hearst had a splendid opportunity to 
ascertain exactly where his interests resided, for shortly after Atlanta's Jews 
registered their protests, he and his wife visited the city, socializing with 
Governor-elect John Slaton and his wife, Sallie, and dining with various 
merchant princes, among them Walter Rich. 



To most Atlantans, the Georgian's evolving alliance with Frank was imper- 
ceptible. The headlines were still huge, the streamers still red, the extras still 
proliferating. But for Hugh Dorsey, the shift— when coupled with the dam- 
aging admissions made by Black and Scott and the skepticism with which 
the general populace regarded the police— presented a serious threat, one 
that would require him not only to build a stronger case but to undertake a 
shrewd campaign to manipulate public opinion. 

The first important piece of new evidence Dorsey produced called into 
question a key part of Frank's self-professed murder-day itinerary— his 
statement that he had been at his desk for the 55 minutes between 12:15, 
when he said that Mary Phagan had left his office with her pay, and 1:10, the 
hour that he'd departed for lunch. The superintendent had, of course, bol- 
stered this assertion at the inquest by testifying that Lemmie Quinn had 
stopped by for a visit shortly after little Mary took her leave. But on May 
10, all three papers reported that Dorsey had secured an affidavit from a 
14-year-old ex-factory employee named Monteen Stover, who said she'd 
dropped in at Frank's office at 12:05 on April 26 to pick up some outstand- 
ing pay and found it deserted. While Monteen's statement was not released, 
she revealed the salient details to the Constitution: 

I went to the pencil factory that Saturday to draw my pay. The front 
door and the door leading to the second floor were unlocked. The whole 
place was awfully quiet and kinder scary as I went up the steps. 

The minute I got to the office floor I looked at the clock to see if it was 
time to draw my pay . . . 



SKULDUGGERY 101 

It was five minutes after twelve. I was sure Mr. Frank would be in his 
office, so I stepped in. He wasn't in the outer office, so I stepped into the 
inner one. He wasn't there, either. I thought he might have been some- 
where around the building, so I waited. When he didn't show up in a few 
minutes, I went to the door and peered further down the floor among the 
machinery. I couldn't see him there. 

I stayed until the clock hand was pointing exactly to ten minutes after 
twelve. Then I went downstairs. The building was quiet and I couldn't hear 
a sound. 

Shortly after acquiring Monteen Stover's affidavit, Dorsey moved to 
commandeer the front pages by announcing that he'd hired "the world's 
greatest detective" to solve the crime. And who was this Sherlock Holmes? 
To that quite legitimate inquiry, the solicitor offered only an enigmatic 
smile. 

While several reporters expressed initial qualms regarding the so-called 
mystery sleuth's existence, most were soon regurgitating Dorsey's periodic, 
albeit vague, updates regarding his exploits. One day, the solicitor revealed 
that his man was "already compiling evidence," the next that he was leaving 
town on a secret assignment. Such releases went a long way toward creating 
the impression that the solicitor was not just in charge but in touch with an 
expert answerable only to him. 

The tack, however, was risky. Beavers and Lanford had already endured 
one humiliation at Dorsey's hands, and they bridled at the prospect of 
another. Huffed Chief Lanford: "He [the solicitor] has some mighty good 
men connected with his office, and I see no need why he should employ any 
'world-beater' detective to assist him." Lanford speculated that the state's 
"A- 1 man" was none other than one of the police detectives— St arnes or 
Campbell But to this theory, Dorsey demurred, putting the detective chief 
in an even more untenable position. By May 14, Lanford was sounding 
embattled. "The squad at headquarters are not inferior when it comes to 
efficiency. In fact, the city detectives have unearthed the larger portion of 
evidence now at hand." Several days later, Lanford warned that a breach 
had developed between his department and Dorsey. 

Contradictory reports regarding the investigation now began to appear. 
At the urging of a handwriting expert hired by the mystery sleuth, Dorsey 
publicly dismissed any lingering suspicion that Newt Lee had composed the 
murder notes. But Lanford disagreed with this assessment, stating: "I have 
not been able to satisfy myself that the negro is not connected with it in 
some way. He knows more than he has told." By mid-May, the Constitution, 
which was politically allied with the solicitor and a reliable barometer of his 



102 AND THE DEAD SHALL RISE 

thinking, was reporting that "Dorsey believes the crime was committed in 
the basement, and that she [Mary] was conscious when carried there." (The 
solicitor was persuaded to this opinion by a woman who told him that at 
4:30 on the afternoon of the murder, she'd heard screams emanating from 
the factory cellar.) Meanwhile, Lanford and Beavers held firm to their orig- 
inal theory "that the victim was rendered unconscious by being struck upon 
the back of the skull when her head hit the planing machine on the second 
floor." Not that headquarters wasn't working up its own surprises. Before 
many days passed, Lanford was titillating reporters with tales of an uniden- 
tified telephone operator who on the night of April 26 allegedly overheard 
"a secret conversation between two attaches of the factory" regarding the 
crime. When apprised of this development, Dorsey confessed ignorance, 
but he regained momentum by intimating that "startling new arrests" were 
imminent. The extent to which the solicitor was perpetrating a stunt here 
can't be known, but no one was apprehended, and from Lanford's perspec- 
tive Dorsey appeared to be playing to the gallery. It was the detective 
chiefs turn to throw up his hands. The investigation had degenerated into a 
turf war. 

By late May, the newspapers were using the phrase "multi-cornered" to 
suggest the polarized configuration. In one corner stood Dorsey and his 
mystery detective. (As it turned out, this shadowy figure actually existed. 
An ex-Pinkerton agent named Frank Pond, he served as the solicitor's eyes 
and ears for a month. Beyond the fact that he used numerous aliases during 
this period, little is known about what he contributed.) In another stood 
Chiefs Beavers and Lanford and the detectives working under them. In 
still another stood the Pinkertons, although their ties to Decatur Street 
led many to view them as a police auxiliary. And in a fourth stood a new- 
comer, a brilliant outsider whose appearance signaled a growing disgust— 
especially among Atlanta's elite— with the inhabitants of the other three. 



Word that William J. Burns was en route to Atlanta inspired the kind of 
fanfare usually reserved for visiting heads of state, burns called into 
phagan mystery; on way from Europe, sang the Georgian's May 12 
banner. 

William Burns was no stranger to headlines. Since 191 1, when he solved 
one of the new century's greatest mysteries— the 1910 bombing of the Los 
Angeles Times building— he had been accorded endless hosannas. Burns 
had traced the Times bombing (which had occurred in the midst of a union 
dispute and left 20 employees dead) to the International Association of 
Bridge and Structural Iron Workers. His efforts contributed to the convic- 



SKULDUGGERY IO3 

tion of two union members. The New York Times christened him "the great- 
est detective certainly, and perhaps the only really great detective, the only 
detective of genius whom this country has produced." 

Not one to practice false modesty, Burns would have found little to quar- 
rel with in the Times'* assessment. Short and stout with florid jowls and 
flaming red hair and mustache, the investigator, according to his official 
biographer, "was far more suggestive of a successful salesman or even a 
theatrical personality than a highly skilled detective." Featured speaker of 
the Alkahest Lyceum and Chautauqua System, friend of Sir Arthur Conan 
Doyle and subject of a series of obsequious film biographies— one of which, 
The Exposure of the Land Swindlers, had drawn crowds to Atlanta's Al- 
cazar Theater earlier in 1913— Burns had achieved a status rivaling that of 
the era's movie stars. 

Since the Grand Panjandrum himself was abroad tracking a wealthy 
missing person, it fell to the director of his Chicago office, a detective 
named C.W.Tobie who'd helped crack the Los Angeles Times case, to set up 
the Atlanta operation. Shortly after arriving in town, Tobie received an 
eight-hour briefing from Dorsey. At the session's close, the solicitor, while 
not casting his lot with the Burns agency, came close: "I gladly welcome Mr. 
Burns. I welcome his investigator who is now on the job. I will give him and 
his staff complete co-operation." In return for such support, the Burns 
operative agreed to submit copies of his daily reports to the solicitor. 

Predictably, news that William Burns was on the job— and that Dorsey 
was glad to have him— did not sit well with Chiefs Beavers and Lanford, 
who perceived the development as yet another insult and threat. If possible, 
Harry Scott was more upset, as the Pinkertons had recently lost one of their 
most lucrative clients— the 11,000-member American Bankers' Associa- 
tion—to the Burns Agency. 

Consequently, Tobie, despite the glowing advance notices, began work 
in a climate of mistrust. Avoiding the press, the detective visited Marietta 
to familiarize himself with the dead girl's family and friends, then he trav- 
eled to an unidentified South Georgia town to search for a previously 
unremarked-upon boy rumored to have accompanied Mary to the factory 
on April 26. 

By May 20, reporters had smoked Tobie out, and if the statements 
he gave are any indication, everything he'd learned tended to reinforce po- 
lice findings. "The girl was lured into the rear of the second floor, on which 
were found the blood spots and hair strands," he told the Constitution. 
"Advances were made. She resisted, attempted to flee. A scuffle ensued. 
Blind with madness, she was struck. She fell backward. Her head struck the 
lathing machine. While still unconscious, the garrote was formed in the 



104 AND THE DEAD SHALL RISE 

wrapping cord. The body was lowered to the basement. Hoping to direct 
suspicion to another source, the slayer penned the mysterious notes." 

In less strained circumstances, Tobie's analysis almost certainly would 
have delighted both the police and the Pinkertons. Instead, those by now 
understandably defensive men seized on a comment the operative didn't 
even make, a remark— prof erred by a powerful Atlantan instrumental in 
contracting the Burns Agency— suggesting that contrary to Tobie's own 
modest claims, he had in actuality inaugurated "a new phase [in the] inves- 
tigation, one entirely overlooked before that will be productive of startling 
developments." 

Both John Black and Harry Scott were quick to respond to the rebuke 
they perceived in the words "entirely overlooked." Declared the city detec- 
tive: "We have overlooked nothing. We have run to earth countless thou- 
sands of rumors, and we have worked systematically." The Pinkerton man 
echoed his friend: "We have overlooked nothing." 

Meanwhile, Tobie imported a new fingerprint expert— P. A. Flak, a 
Briton with offices in New York— to examine both Leo Frank and Newt 
Lee. But before long, the Burns agent hit a wall. With witnesses reluctant to 
answer questions and behaving as "if they were under instructions," he 
sensed that "some secret" force was "obstructing] his efforts at every turn 
of the road." 

Tobie's problems didn't stop there. Rumors that he had once abducted a 
baby soon began circulating around Atlanta. As it happened, Tobie had in 
fact whisked a child out of one parent's hands and into the other's during 
a custody case in Kansas, but "kidnapping" was too strong a word for it. 
Nonetheless, the operative soon found himself spending as much time 
denying accusations as he did investigating the Phagan murder. 

Tobie, in short, had stumbled into a conflict that eclipsed the one be- 
tween Hugh Dorsey and the police, a conflict that threatened to turn Leo 
Frank into a pawn in a battle between divergent factions at war over 
Atlanta's future. 



The events that not only contaminated the investigation with the stench of 
local politics but exacerbated the religious and class tensions inherent in 
the affair cannot be understood without addressing the man who'd engaged 
the Burns Agency. Thomas B. Felder was one of the best-known lawyers in 
the South, an audacious figure both personally and professionally. Every- 
thing about the Colonel— as the 48-year-old Felder, in the best Southern 
tradition, was known— bespoke grandiosity. In appearance, he was a cane- 
carrying popinjay. In conversation, he was a self-promoter. And in society, 
he and his wife, Ann— president of the Atlanta Players Club— were on inti- 



SKULDUGGERY 105 

mate terms with all the quality folk, among them Georgia's first lady of the 
theater and her husband, the governor-elect. With Sallie Slaton starring in 
the Players Club's spring production of The Importance of Being Earnest, 
the Felders and the Slatons were frequently linked in print, whether it was 
in an item reporting their presence at a postrehearsal supper party or one 
praising the women for loaning their respective silver tea services for use as 
stage props. 

To his social and financial peers, it little mattered that Felder had played 
a pivotal part in one of the day's most outrageous legal escapades. As coun- 
sel to Charles W. Morse, Felder represented a man whose name had be- 
come synonymous with stock market scandal. Though often referred to 
as the "Ice King" for his role in a 1906 plot to corner New York's commodi- 
ties market in ice, Morse was best known for his 1907 run on United Cop- 
per, a plunge setting off a collapse that bankrupted numerous trusts and 
threatened the market itself until J. Pierpont Morgan— in a history-making 
show of force— stopped it single-handedly. In 1910, Morse had been con- 
victed of tampering with the books of the Bank of North America and sen- 
tenced to fifteen years at Atlanta's Federal Penitentary. Enter Felder. In 
19 1 2, after examinations by government doctors showed that Morse was 
dying of Blight's disease, Felder had applied to President William Howard 
Taft for an executive pardon, which Taft had granted. 

Even at the time, the Morse pardon exuded a whiff of impropriety. Many 
were those who doubted whether Morse was truly suffering from a fatal ill- 
ness. As 1912 became 1913 and the Ice King had yet to expire, the doubters 
had multiplied. Either the government had employed bad doctors— or 
Thomas Felder was an exceptional lawyer. Whichever, Morse recovered, 
and the news would eventually emerge that he'd faked the symptoms of 
Blight's disease by imbibing a cocktail consisting of various irritating soaps. 
Morse would remain among the living until 1942. 

Thomas Felder was not judicial timber, although nearly everyone in his 
circle was aware of that long before the Morse pardon, for he had floated 
into Atlanta society on a veritable stream of alcohol. Just how many brew- 
eries, distilleries, distributors and bar owners the Colonel counted as clients 
is uncertain (40 was the number critics bandied about), but what it all added 
up to was an undeniable reality: Felder was the city's reigning liquor lawyer. 

Yet Felder's alliances with Atlanta's racier sorts ultimately ran deeper, 
for he was closely associated with that fashionable rake who until just six 
months before the Phagan murder had purveyed not only hooch but har- 
lots. The Colonel was counsel to Charles C. Jones, proprietor of the Rex and 
deposed prince of Mechanic Street— the man who'd been the primary tar- 
get of Chief Beavers's campaign against the houses in the city's midst. 

Felder's ties went all the way to the office of Atlanta's bibulous mayor. 



106 AND THE DEAD SHALL RISE 

Jimmy Woodward was also one of the Colonel's cohorts. And what had the 
mayor been up to in the months since the restricted district was shuttered? 
Most recently, he'd been canvasing members of the police commission to see 
if he could secure the votes necessary to topple the Beavers administration. 

All of which explains why Beavers and Lanford were dismayed when, 
only a week after Mary Phagan's murder, Colonel Felder— who'd never 
expressed any interest in the plight of Atlanta's poor working girls and who, 
as an associate of Jones, could even be said to be an exploiter of the class 
and sex— announced that several of little Mary's Bell wood neighbors had 
employed him to investigate the crime. Skepticism mounted following 
Felder's May 13 visit to New York, where he engaged the Burns Agency, 
then increased further on May 16, when he unveiled a subscription drive 
to raise $5,000 that would subsidize the renowned detective. By the time 
Felder issued his first statement on the case— the one claiming that the 
authorities had "entirely overlooked" crucial clues— Beavers and Lanford 
were convinced that he was attempting to use the Phagan probe to promote 
his own nefarious agenda. 

The debate over Felder's motives came to a head on May 17 when he 
released the names of those Atlantans who'd thus far contributed to his 
fund. Not that the Colonel was all that forthcoming. For one thing, he said 
that many of his backers— among them a dozen "business leaders" and 
"society ladies"— had requested anonymity. But of the supporters whom 
Felder was willing to identify, one was the aforementioned Charles C. Jones 
and the others were Jews, most notably the industrialist and Chamber of 
Commerce official William J. Lowenstein and the philanthropist Joseph 
Hirsch. For Beavers and Lanford, the connections seemed obvious. Here 
was proof that Felder and by extension Burns were allied with a group that 
included Frank, his religious and economic peers and the flesh peddlers and 
corrupt politicians who'd opposed the police department's war on vice. 

Lanford's suspicions were, of course, only that. To discredit Felder, the 
detective chief needed evidence, and on May 17, he got some in the form of 
a notarized affidavit signed by Mary Phagan's stepfather, John W. Coleman: 

The affiant, while at the police station during the coroner's inquest . . . was 
approached by a man somewhat under the influence of liquor, [who] said 
to the affiant, "I am working for the law firm of T. B. Felder, and I would 
like to have you go to his office, as he wants to see you, and I advise you to 
employ him." Affiant said, "No, I won't go to his office." The piker then 
said, "Will you talk to Colonel Felder if I bring him here?" whereupon the 
affiant agreed ... He came back in a few minutes with Felder. Colonel 
Felder then said, "I want you to employ me to prosecute this case. It will 



SKULDUGGERY 107 

not cost you a cent." The affiant told him he did not want to employ 
him . . . and affiant did not employ him. 

Had the statement concluded here, it might not have raised any eyebrows. 
But in a distinctly Lanfordesque addenda, it continued: 

Affiant is thoroughly satisfied with the great work done by Chief of Police 
Beavers and Chief of Detectives Lanford and the able men working under 
them, as he believes, as thousands of others do in Atlanta, that they have 
the real murderer in jail . . . The affiant cannot reconcile himself to the 
conduct of Colonel Felder, who is posing as a prosecuting attorney and 
wanting five thousand dollars from the people of the City . . . The affiant 
does not believe [Felder is] anxious to prosecute the men under arrest. 

Whatever the affidavit's provenance, Lanford now possessed a docu- 
ment that could scuttle Felder. After locking the statement in a safe, the 
detective chief made his move. 

On Sunday, May 18, Felder picked up the telephone at his home in the 
North Atlanta suburb of Buckhead and heard a familiar voice. Arthur S. 
Colyar, Jr., a self-described freelance writer and investigator who'd assisted 
the Colonel in previous adventures, was calling to say that Lanford had 
obtained the Coleman affidavit. Furthermore, Colyar implied that he knew 
a disgruntled police employee who for a price would provide Felder with 
the item before it could be used against him. His curiosity piqued, the 
Colonel invited Colyar to confer with him the following afternoon. 

At the appointed hour, Colyar, accompanied by none other than C. Gay 
February— Lanford's secretary and the man who'd penned the fake affi- 
davits at the heart of the 1910 police scandal— appeared at Felder's office to 
broker a deal. The terms: For $1,000 and freedom from prosecution, Febru- 
ary would turn over not just the Coleman statement but a graft list reveal- 
ing that Beavers and Lanford, their crackdown on the restricted district 
notwithstanding, were on the take from a new generation of madams in far- 
flung locales. Now genuinely intrigued, Felder agreed to another session, 
this one on neutral ground. 

Around 3 p.m. on Wednesday, May 21, Thomas Felder entered the 
Williams House, an aging but still popular hotel located on Forsyth Street a 
few blocks north of the National Pencil Company. Awaiting him in Room 
31 were Colyar, February and an innocuous-looking wooden chest. Nestled 
imperceptibly beneath a slightly ajar drawer were two transmitters. Several 
red wires hidden in the crevices of the chest snaked away from these cun- 
ningly positioned bugs, disappearing into the keyhole of a door that opened 



108 AND THE DEAD SHALL RISE 

into an adjoining room. Behind that door was a Dictograph with its opera- 
tor, headphones clamped over his ears, standing by. 

After voicing a few pleasantries, Felder broached the subject that had 
brought the men together. 

"Now what I say to you is strictly confidential," he began. "Day before 
yesterday, I saw Woodward." 

"You saw Woodward, Monday?" Colyar asked. 

"Yes. Woodward says now it is all right for you to get the papers, and we 
will pay you for them." 

At this point, February entered the discussion. 

"Let me understand you. You want this Coleman affidavit and all other 
Phagan affidavits that I can get hold of?" 

"Yes," Felder answered. "Colyar told me that he was to have the evi- 
dence that would get those two chiefs out of commission." 

"Will $1,000 be paid if we can get the papers?" Colyar inquired. 

"Yes," Felder said. 

As swimmingly as it all had gone, the conversation ended on a discordant 
note when Colyar proposed the East Lake Country Club, a golfing resort 
just beyond city limits, as the spot to consummate the transaction. Fearful of 
receiving stolen documents outside Atlanta, Felder blanched. He wanted to 
do the deed in town. Thus the talks broke off. Yet prior to departing, the 
Colonel agreed to summon several associates to continue negotiations. 

Late Wednesday afternoon, the second shift began arriving at the Williams 
House. First came one of Felder's associates, E. O. Miles, but when Mayor 
Jimmy Woodward and Charles C Jones materialized, the magnitude of Col- 
yar's catch revealed itself. 

"Do you think Frank murdered that girl?" Colyar was soon asking 
Miles. 

"I never have believed it," Miles replied. "I think the whole case was 
handled badly. They had an extra on the street at 6:30. They should have 
never allowed all the persons they did on the premises. Just after the mur- 
der there were only a few scents and tracks, and the man who did the mur- 
der could have easily been tracked. They should have looked for footprints 
and fingerprints." 

Colyar then posed the same question to Woodward. 



SKULDUGGERY IO9 

"Phagan case?" the mayor grunted. "I think it has been mighty mussed 
up." 

After getting these attacks on the record, Colyar maneuvered his prey onto 
even more dangerous grounds. 

"Did you tell Tom Felder," he asked Woodward, "that you authorized 
Felder that if he got the proof for you, you would see that he got paid 
for it?" 

"I told Felder," the mayor replied, "that on matters of this kind that I 
am satisfied that certain parties would be willing to pay the money." 

Woodward, in essence, had endorsed the payoff, but Colyar wanted the 
mayor to state that he was willing to countenance theft. 

"Only two men can get the evidence," Colyar said. "February and Chief 
Lanford." 

"Get anything that looks like graft," Woodward answered. "I don't care 
who it hits, and especially Beavers." 

With that, everything— even the spot where the transaction would be com- 
pleted (Miles didn't object to East Lake)— was settled, and Woodward 
departed, followed soon thereafter by Miles and Jones, who'd been notica- 
bly reticent throughout the meeting. 



Charles C. Jones may have been, as one reporter later put it, "too foxy" for 
the Dictograph, but Thomas Felder and the others weren't so nimble. Not 
that many folks could have outmaneuvered this prototypic electronic sur- 
veillance device. Nonetheless, Newport Lanford wasn't taking chances. In 
fact, he spent much of the next day securing notarized statements from 
everyone involved in the sting. The plan was to arrest Felder, stolen papers 
in hand, at the East Lake Country Club, then deluge the press with a bliz- 
zard of transcripts and depositions. With one flourish, the detective chief 
intended to vanquish not only the individuals who'd expressed doubts 
regarding the department's Phagan investigation but the cabal of sin mon- 
gerers and cosmopolites who opposed Decatur Street's overall war on 
wickedness. 

There was, however, a central player in the drama whose motives Lan- 
ford had not examined. On paper, 46-year-old Arthur Colyar seemed reli- 
able. The son of a former publisher of the Nashville Banner and grandson of 



110 AND THE DEAD SHALL RISE 

a former governor of Tennessee, he'd said his only interest in the Felder 
case was journalistic (he claimed he wanted to write an expose of municipal 
corruption), and the detective chief had believed him. This was a mistake. 

Colyar was one of the subtlest knaves ever to hit Atlanta, and as with so 
many dishonest souls, he infused every mendacity with an element of truth. 
His interest in Felder actually was journalistic— just not in the way the 
police imagined. Sometime on Thursday, May 22, Colyar paid a call at the 
Journal's newsroom. Toting a valise stuffed with copies of the Coleman affi- 
davit, the Williams House transcript and other documents connected with 
the probe, Colyar was in the market to sell. And as it turned out, the Jour- 
nal's editors, desperate to scoop the Georgian, were in the market to buy. 

On Friday, May 23— the day before Lanford intended to apprehend his 
quarry— Atlanta was once again bombarded with headlines. Roared the 
Journals front-page banner: 

COL. THOMAS B. FELDER DICTOGRAPHED BY CITY DETECTIVES 

Beneath this screamer, the paper ran out everything it had. Here were 
enough scintillating comments and juicy depositions to keep Atlantans en- 
thralled for days. More significant, the material portrayed Felder as a slick 
grafter and intimated that sinister forces were trying to derail the Phagan 
investigation. 

Though Chiefs Beavers and Lanford were initially incensed by Colyar's 
premature publications, they soon realized how utterly their enemies had 
been routed and pressed their advantage. Boomed the double-deck banner 
atop the May 25 Journal: 

"FELDER IS THE MOUTHPIECE OF THE VICE GANG," 
DECLARES CHIEF JAS. L. BEAVERS 

Herein, Beavers vowed he would battle the forces embodied by Felder "to 
the finish if I die in my tracks," asserting that "the issue is now between the 
decent people of the city and the gangsters who have controlled the city for 
years. This has outgrown the Phagan case and has assumed the proportions 
of the hottest fight in the political history of Atlanta." 

And a fierce fight it was. Felder began his defense by distributing a 5,000- 
word broadside to all three newspapers. In this statement, the Colonel, 
claiming that the Williams House transcripts had been doctored, dismissed 
the entire episode as "but the symptom or manifestation of one of the most 
diabolical conspiracies ever hatched by a venal and corrupt 'system.' "Then 
the Colonel threw his haymaker, accusing his accusers of the very offense of 



SKULDUGGERY III 

which he stood accused. Namely, he charged Beavers and Lanford with 
undermining the prosecution of Leo Frank. 

"I would have the people of this community know," the Colonel improb- 
ably proclaimed, "that from the day and hour of the arrest of Leo Frank, 
charged with the murder of little Mary Phagan, Newport Lanford and his 
coconspirators have left no stone unturned in their efforts to shield and 
protect the suspect. [They] have winked at forgery, suborned perjury, and 
employed every base agency their low and groveling criminal instincts 
could contrive and conjure." 

As to what possible motive Beavers and Lanford might have had for 
deflecting suspicion from Frank, Felder was quoted as having told an asso- 
ciate: "This damned fellow Lanford knows that Frank killed [Mary Pha- 
gan], but he has sold out to the Jews for big money which he is getting and 
has got, and he is trying to discredit myself in his effort to protect this 
damned Jew." 

The two chiefs didn't let Felder's allegations go uncontested. Regarding 
his claim that the Dictograph records had been doctored, Lanford simply 
released the name of the operator who'd transcribed the session— George 
Gentry, nephew of the president of Southern Bell Telephone. And as for the 
accusation that the police were in Frank's pocket, the detective chief tersely 
and credibly responded: "It is easy for anyone to see that there is no police 
plot to protect Frank." Then, in a sally worthy of Felder himself, Lanford 
added: "As for Tom Felder's charges of graft, all Atlanta knows they are 
untrue, unfounded and are but the explosions of a distorted brain— a brain 
deformed by years of treachery." 

Even more damaging to Felder, the press seconded Lanford's dismissal 
of the suggestion that the police had sold out to Jewish money. Noted 
the Constitution: "Up until the time Mr. Felder had begun to 'bombard' 
the public with statements of his belief in Frank's guilt, it was generally 
believed he was in the suspect's employ." 

For the embattled denizens of Decatur Street, Felder had turned out to 
be a blessing. Yet Beavers and Lanford were unable to capitalize any fur- 
ther on their good fortune, and this was because of the man who'd enticed 
Felder to take part in the Williams House sessions. 

"Career of A. S. Colyar Reads Like Some Story in the Arabian Nights," 
declared the headline atop the May 24 Constitution. The paper's antipolice 
sentiments notwithstanding, the facts presented in its account were indict- 
ing. From youth, Colyar had exhibited a talent for deception. As a young 
man visiting Mexico under false pretenses, he'd been received "with great 
eclat" at ceremonies attended by the nation's president. What made the 
incident something more than a college-boy prank was that Colyar had 



112 AND THE DEAD SHALL RISE 

then used his bogus credentials to bilk the American ambassador out of a 
sum variously reported as between $1,000 and $10,000. Subsequently, Col- 
yar was admitted to the Middle Tennessee Insane Asylum. Soon thereafter, 
he fled his home state and had henceforth essentially run amuck, making a 
living by romancing rich women and hoodwinking church congregations. 
Though Colyar did once serve jail time, the Constitution reported that 
"probably no man in Tennessee has imposed so successfully upon the pub- 
lic and has escaped so lightly." 

Within hours after news of his criminal past hit the streets, Colyar was 
under arrest on fraud charges stemming from an outstanding warrant, and 
Felder and Mayor Woodward were back in business. Through a friend, 
Felder accused the police of fraternizing with "a moral degenerate." Mean- 
while, the mayor cackled: "Now isn't Colyar a fine specimen to be hired by 
the city detectives." Attempting to deflect such barbs, Chief Beavers main- 
tained: "He [Colyar] may be a crook, but it is no uncommon thing for one 
crook to turn up another." Felder and Woodward, however, would have 
none of it. Indeed, the Colonel proposed that Beavers "be stripped naked 
and ridden through Atlanta on a cart with a sign reading 'Reform Chief 
hung from his neck." 

Where once the Phagan investigation had merely been in danger of 
becoming a jurisdictional squabble, it was now degenerating into a calum- 
nious rhubarb pitting faction against faction, class against class, faith against 
faith. 

The first casualty was the Burns Agency, which withdrew from the inves- 
tigation on May 27. In announcing the decision, C. W. Tobie noted: "This is 
a helluva family row and no place for a stranger. I came down here to inves- 
tigate a murder case, not to engage in petty politic[s]. All of this stuff seems 
to have been brewing for some time, and it has just now come to the sur- 
face." With that, Tobie returned to Chicago, and William Burns was denied 
the chance to look into Mary Phagan's murder while clues were still fresh. 

For Thomas Felder, the repercussions were worse. As far as the Phagan 
case was concerned, the Colonel was finished. Though he would later suc- 
ceed in getting a grand jury to investigate the Atlanta police, he had 
revealed himself to be not just a servant of Bacchus but a cad and a cur. 

In the end, however, the Dictograph episode's only true victim was 
Frank. The superintendent would always be suspected of having employed 
Felder, and though the charge was never proven, it was never laid to rest. 
While it was likely true, as Luther Rosser would subsequently assert, that 
"Felder does not, nor has he at any time, directly or indirectly, represented 
Frank," Frank's counsel failed to address, much less explain, why such 
notable Jews as Lowenstein and Hirsch lent their names to Felder's cause. 
The most charitable explanation was that these men, fearful for one of their 



SKULDUGGERY 113 

own, were duped. Even so, what many Atlantans took away from the 
episode was the impression that the Jewish community was in business with 
the likes of Charles C. Jones. Thanks to Felder the anti-Semitism Atlanta's 
Jews had perhaps prematurely feared might enter the case found a place to 
hang its hat. This was not, however, the Colonel's most damaging bequest to 
Frank. Felder did his real damage at headquarters. As Rosser would later 
put it: "Once Felder charged Newport Lanford with favoring Frank, the 
detective settled in his mind the guilt of Frank and from that moment bent 
every energy of his department, not in finding the murderer, but in trying to 
prove to the public that Felder was wrong in charging him with trying to 
shield Frank." 

The Dictograph scandal was not without survivors. No matter how badly 
Beavers, Lanford and Woodward had acquitted themselves, they had done 
nothing out of character and were thus seen no differently than in the past. 
But there was only one real winner in the affair— Hugh Dorsey. Exhibiting 
uncanny dexterity, Dorsey had perched himself not just above the fray but 
in a position that allowed him to keep an eye on both Felder and Decatur 
Street. Following his initial daylong briefing of C. W. Tobie, he'd met regu- 
larly with Felder regarding the Burns Agency's involvement, and if Chiefs 
Beavers and Lanford had been sent packing, he would have been ready to 
embrace a new police regime. Simultaneously, however, he had advised 
Lanford on the legality of Dictographing Felder and had assured the chief 
that it was "perfectly legitimate." Dorsey had played both sides, and he'd 
done it with verve. When it had briefly looked as if Lanford might be unable 
to locate a Dictograph, the solicitor, knowing full well the chiefs intentions, 
had contacted Felder and devilishly sought to borrow his. As it turned out, 
the Colonel was unable to supply the gadget and was thus saved from being 
hoisted by his own petard. 



Adroit, brazen, poker-faced— Hugh Dorsey was all these things, but native 
cunning could carry him only so far. Weathering the Dictograph storm 
was one matter, but presenting a case to the grand jury was another. Con- 
sidering the skeptical response accorded the coroner's jury's finding, Leo 
Frank's indictment was hardly a foregone conclusion. 

While the Felder affair had raged, Dorsey had devoted most of his 
efforts to refining his case. Postponing other trials and twice delaying 
the grand jury sessions themselves, the solicitor— aided by Starnes, Camp- 
bell, the mystery detective Frank Pond and an assistant named Newton 
Garner— had interviewed scores of witnesses. Not surprisingly, much of the 
intelligence filtering into Dorsey from both the Pinkertons and the police 
focused on the charges of sexual impropriety against Frank. 



114 AND THE DEAD SHALL RISE 

Whatever the ultimate utility of the intelligence, Dorsey now knew that 
some of the specific accusations— among them the "joy ride of heaven" 
anecdote and the item suggesting that Frank and a girl who looked like 
Mary Phagan had created a scene at Terminal Station the day before the 
murder —were false, products, in the first case, of an overheated mind; in the 
second, according to the Pinkerton files, of an instance of mistaken identity. 
Dorsey also had reason to question the story that had convinced many 
Atlantans that Frank had lusted after little Mary— the story George Epps 
had told to the inquest. In the wake of Epps's testimony, Pinkerton agent 
L. P. Whitfield had visited the victim's mother at her Bellwood home. What 
she said, had it been made public, could well have recast the investigation: 

Mrs. Coleman also stated that she . . . never heard Mary speak of any boy 
friends and that the statement that George Epps made . . . that Mary was a 
chum of Epps and that he had an engagement with Mary at a local drug 
store was to her mind incorrect, as she had heard Mary say that she 
detested Epps and Mrs. Coleman is sure that Epps did not have any 
engagement with Mary on Saturday afternoon as stated. Mrs. Coleman 
further stated that she has never heard Mary say anything about Superin- 
tendent Frank only as an official of the Pencil Company. 

Owing to the identity of the Pinkerton agent involved, Dorsey may well 
have discounted Mrs. Coleman's remarks. As the case had progressed, 
Whitfield, unlike his rival Scott, had begun to believe that Frank was inno- 
cent. Nonetheless, Mrs. Coleman's statement— which was, of course, also in 
the hands of defense attorneys— was not going to go away. 

Yet even as some of the allegations against Frank were coming under 
attack, other charges were flooding in. On May 1 1, the Constitution devoted 
a chunk of its front page to the story of Robert House, a private detective 
who alleged that on several occasions in 1912, he'd observed Frank and an 
unidentified girl enter a secluded grove near the Druid Hills subdivision. 
Eventually, House said, he'd followed the couple, adding that when Frank 
realized he and his consort had been spotted, he'd begged for considera- 
tion. "I don't want you to see the girl," House recalled Frank saying. "I 
admit that we came here for immoral purpose. Please don't make a case 
against us or arrest us. It would disgrace us both. We will leave instantly." 
According to House, he'd initially let the matter drop, informing the police 
of it only after the Phagan murder. 

Hard upon the House revelations, Dorsey received a deposition signed 
by a madam named Nina Formby alleging that on the night of the murder, 
Frank— ostensibly a good customer— had called her looking for a room in 
which he could dispose of Mary Phagan's body. The Formby affidavit, dated 



SKULDUGGERY 115 

May 11 and taken in Newport Lanford's office by Detectives W.T. Chewn- 
ing and J. N. Norris, was from the start a subject of dispute. Lanford insisted 
that the statement tied the crime to Frank. But in a May 14 interview, a 
"boarding and assignation house" proprietor named Etta Mills told a 
Pinkerton man that Mrs. Formby was untrustworthy. "I asked Miss Mills 
what she knew of the Famby [sic] woman," noted agent W. D. MacWorth, 
"and she stated that the Famby woman was fast and a hard drinker, there- 
fore, irresponsible for her talk." When reports that her statement was being 
questioned hit the press, Mrs. Formby replied that Frank's supporters were 
trying to bribe her, telling the Constitution that on several occasions she'd 
been offered large sums to leave town until the Phagan trial ended. 

After weighing the character evidence, Dorsey ultimately concluded 
that Frank had frequently used his position to force himself upon female 
employees and that such an attempt had led to Mary Phagan's murder. As 
he would later assert: "Extraordinary passion goaded on this man." Just as 
surely, however, Dorsey realized that unless the defense introduced the 
issue at trial, any references to Frank's past would be inadmissible. 

Which was why even as he was trying to sort through the mass of sexu- 
ally tinged evidence, Dorsey was preparing a circumstantial— and far more 
circumspect— case. At its core, his presentation to the grand jury would 
revolve around time: the time Mary Phagan left home, the time she reached 
the factory and, most critical, the time of death. Though Dr. Harris had 
yet to complete his lab work and Dorsey would therefore be unable to ad- 
vance an exact hour to the grand jury, the preliminary examination had sug- 
gested that little Mary had died around 12:15— about the time Frank said 
she'd departed his office, about the time Monteen Stover said his office was 
empty. 



The Phagan grand jury convened at 1 1 a.m. on Friday, May 23, with twenty- 
one of the twenty-three jurors present. Journalists, of course, were barred 
by law from attending, but Dorsey took no chances. To make sure that nei- 
ther prying eyes nor Dictographs penetrated the Thrower Building cham- 
ber in which the sessions were held, doors and windows were shut tight, 
crevices sealed with papers. Yet even if a reporter had managed to evade 
the defenses, he wouldn't have learned much, for Dorsey had decided to 
present only the bare amount of evidence needed to secure an indictment. 
Despite these precautions, some of what went on during the two days of 
hearings leaked, for the Journal reconstructed a rough outline of Dorsey's 
presentation. Relying on the testimony of R. P. Barrett, the machinist who 
discovered the bloodstains and hair on the factory's second floor, the solici- 
tor abandoned his flirtation with the basement as the murder site, opening 



Il6 AND THE DEAD SHALL RISE 

his case by arguing that the crime occurred in the metal room. Dorsey then 
called Dr. Hurt to establish the time of death. Hurt was followed by Mon- 
teen Stover. Next came B. B. Haslett, one of the detectives who'd assisted in 
the investigation, and James M. Gantt, the dismissed bookkeeper. Both tes- 
tified to Frank's anxiety— the former on the day of his arrest, the latter on 
the day of the killing. 

Advancing a motive, however, was not so easy. As had recently been 
made public, Dr. Hurt had reached the startling conclusion that Mary Pha- 
gan had not been raped. With Dr. Harris still on the sidelines, Dorsey was 
forced to lean on the testimony of two nonexperts: Sergeant L. S. Dobbs, 
one of the responding officers, and undertaker Will Gheesling. 

The thrust of Dorsey's case was straightforward: Frank, after raping 
Mary Phagan, murdered her and then attempted to do away with the 
remains. According to the Journal, the most telling aspect of the solicitor's 
presentation lay not in his theory but in the fact that he evidently did 
not adduce any physical evidence. Regarding the results of the tests he'd 
ordered on Lee's shirt and the red spots found near Barrett's workstation, 
Dorsey was silent. More remarkably, he didn't address what many saw as 
the crime's most significant clues— the murder notes. 

If the grand jurors were disturbed by this lack of detail, they gave little 
indication of it, evidently taking on faith Dorsey's assurances that at the 
appropriate moment, he would reveal all. Once the solicitor left the body to 
its deliberations, its members needed but five minutes to return an indict- 
ment against Frank. As for Lee, whose case had also been under considera- 
tion, the jurors deferred action. He would be held as a material witness 
should the state need him later. 

Thus Hugh Dorsey had cleared the first hurdle, and what made the vic- 
tory impressive was the fact that like most such bodies, the grand jury 
was comprised of businessmen who might have been expected to sympa- 
thize with Leo Frank. The group's foreman, L. H. Beck, was president of 
Atlanta's largest hardware concern. More significantly, four Jews— George 
A. Gershon, A. L. Guthman, Sol Benjamin and future Chamber of Com- 
merce president Victor Hugo Kriegshaber— sat on the panel. While it's not 
known how these men voted (only twelve yeas were required to indict), all 
except Kriegshaber (who was out of town) had been on hand. This is a 
notable fact, suggesting that initially, Dorsey may well have convinced three 
of Frank's coreligionists that his case against the superintendent was sound. 

Not surprisingly, Dorsey failed to convince many other Atlanta Jews. 
Even less surprisingly, he failed to convince the Georgian. "State Faces Big 
Task in Trial of Frank," proclaimed the headline atop its piece on the grand 
jury's findings. Focusing on the state's lack of physical evidence, the Hearst 
sheet predicted that Luther Rosser was going to have a field day in court: 



SKULDUGGERY 117 

It is regarded as likely that the defense will claim first of all that the 
State has failed to establish Frank's connection with the crime. The defense 
will represent that the most the State has done is to establish that he had 
the opportunity to commit the murder. Frank never was seen with the girl, 
either on the day of the strangling or before. It is not known that he ever 
spoke to her except in connection with her work. None of Frank's clothing 
has been found with blood stains upon it. No finger prints upon the girl's 
body or clothes were identified as his. None of his personal belongings 
were found near the girl's body. Absolutely nothing was discovered in the 
search of the detectives that fastened the crime on him. 

The Georgian also pointed out that there were others in the factory at the 
time of the slaying, "this fact opening the way to the argument that it need 
not have been Frank who did it." Finally, the paper addressed one of the 
more recent sexual allegations, arguing that even if verified, it was irrele- 
vant: 

Should the State be able to prove beyond a doubt that it was Frank whom 
the park guard discovered, the defense will still be able to say that this fact 
no more connects Frank with the murder than it does hundreds of other 
persons. 

Though the Georgian was the only paper to question the grand jury's 
decision, it is notable that at this critical moment, no one unconnected with 
the investigation praised it. No one, in short, proclaimed the case closed. In 
fact, the Constitution— whatever its allegiances to Dorsey— didn't even 
report Frank's indictment on its front page, playing it, instead, inside. 



SEVEN 



That any Negro would lead Hugh Dorsey, the investigators and most 
Atlantans out of the wilderness of uncertainty and acrimony and 
onto the high plain of clarity and accord was strange enough, but 
that a shiftless, no-count Negro would emerge at this juncture in the case 
and like some Delphic oracle issue pronouncements that would ultimately 
be embraced over the word of a white man suggests nothing less than a 
miracle. 

James Conley had been arrested back on May i after E. F. Holloway, the 
pencil company's day watchman, spotted the Negro sweeper standing at a 
second-floor factory water cooler washing red stains out of an old blue 
work shirt. His startled reaction— he evidently dropped the garment into a 
recess in the floor— suggested he had something to hide, but once he was in 
custody, he told a straight tale, swearing that he'd just been trying to rinse 
away some rust marks because he had nothing else to wear to the coroner's 
inquest. Typical, thought the detectives, who agreed to release Conley as 
soon as a chemical analysis of the stains was completed. 

During the early days of his incarceration, Jim, as Conley was gener- 
ally known, had done nothing to attract his captors' attention. Squat and 
chunky with a powerful torso and coarsely handsome features framed by 
a broad forehead and prominent jaw and dominated by a strong nose 
and slabbed lips, he'd seemed unworthy of curiosity. Only later, noting his 
creamy ginger-root complexion, mustache and almond-shaped eyes, would 
a reporter observe: "Jim Conley isn't a cornfield negro. He's more of the 
present-day type of city darkey." 

Jim's initial statement to John Black and Harry Scott— a statement the 
detectives didn't even bother to take until fifteen days after his arrest— had 
merely confirmed what first impressions suggested. In a long recitation of 
his murder-day itinerary, he'd told the investigators: 

On Saturday, April 26, 1913, 1 arose between 9 a.m. and 9:30 a.m. and ate 
my breakfast. At 10:30 I left the house . . . and went to Peters Street and 
visited a number of saloons ... I purchased a half pint of rye whiskey from 
a negro who was walking along Peters Street about 11:00 a.m., I paying 40 



A CLEAN NIGGER 119 

cents for this whiskey. I visited the Butt-In saloon and went back to the 
pool tables and saw three colored men shooting dice, and I joined them 
and won 90 cents from them. I then purchased some beer, paying 15 cents. 
I then walked up the street and visited Earley 's beer saloon, purchased two 
beers and wine, paying ten cents for same. This was all the money I spent 
on Peters Street, and I arrived home at 2:30 p.m. and I found L. Jones 
[Lorena Jones, Conley's common-law wife] there and she asked me if I 
had any money. I replied yes, and gave her $3.50 (one dollar in greenback, 
and the rest silver money). I drew $3.75 from the pencil factory on Fri- 
day ... At 3:30 or 4:00 p.m. Saturday, April 26th, I purchased 15 cents 
worth of beer and then returned to the house ... I remained at home Sat- 
urday night. 

Yet even if the police had discovered a discrepancy in Conley's account, 
he still would have been free from suspicion, for he swore he could not do 
what the Phagan girl's killer or accomplice, one of whom surely authored 
the murder notes, could do: write. No, he was just shuffling Jim, dark and 
dim. As another reporter noted: "He talks slowly and deliberately with a 
kind of African drawl and some of his vocabulary is so peculiarly 'niggerish' 
that it is hard to distinguish, at times, what he means." 

Little is known about the 29-year-old Conley's youth beyond the fact 
that he was born in Atlanta and that his parents worked at the busy Capital 
City Laundry on Mitchell Street. But if his job history can be taken as a 
guide, his life had been filled with hardship and trouble. During his teens, he 
sawed wood at a lumberyard. At twenty-one, he hired on at a South Forsyth 
Street stable. After a year grooming horses, he graduated to handling them, 
laboring first for Orr's Stationery Company as a delivery boy, then for a 
physician as a buggy driver. In 191 1, Jim went to work at the National Pen- 
cil Company. Initially, he was assigned to the respected and visible position 
of elevator operator, but not long before the Phagan murder he was busted 
down to sweeper and was evidently in danger of sinking lower. By all 
accounts, he had a drinking problem, and according to E. F. Hollo way, it had 
grown intolerable. "About a week before the crime was committed," the 
day watchman told the Georgian, "the forelady of the trimming and finish- 
ing department, Miss Eulah May Flowers, went to the top floor of the build- 
ing to look over the stock of boxes. When Conley was not sweeping, he was 
supposed to fill the box-bin with boxes. When Miss Flowers moved toward 
the bin to look in she stumbled over a form. She screamed and fell back. It 
was Conley. He was dead drunk." 

Neither this position— prone— nor this condition— liquored up— was 
new to Conley. He had been arrested so many times for drunk and disor- 
derly conduct that he'd adopted the alias of Willie Conley in the hope that 



120 AND THE DEAD SHALL RISE 

he could stay one step ahead of the law. Most of his crimes had resulted in 
mere fines, but on several occasions, the offenses (among them a rock- 
throwing incident and an armed robbery attempt) had been more serious, 
and he had served two sentences on the chain gang. Three months before 
the Phagan killing, Jim had fired a shot at Lorena Jones, whom he did 
not hold in high esteem. (In his initial statement, he told the police: 
"This woman is not my wife ... I have [only] been having intercourse with 
Lorine.") Though Jim's aim proved faulty, he did graze another Negro 
woman standing nearby. The incident earned him a stay in jail. 

Here again, though, none of this prompted questions by the detectives 
probing the Phagan murder. To them, ignorance, inebriation and a predis- 
position to violent outbursts were common black vices. That Conley might 
in reality have been a complex character, that he might have emerged from 
a society that had inculcated him with a heritage as various and an intelli- 
gence as keen as any white man's, was not considered. 



Like the more populous and infinitely more powerful white city it stretched 
across, in writer W.E.B. Du Bois's phrase, "like a great dumbbell . . . with 
one great center in the east and a smaller one in the west," black Atlanta 
was deeply divided along lines of class and wealth. Similarly, the colored 
masses not only outnumbered the erudite few, they made the bigger noise. 

Vine City— black Atlanta's western hub and Jim Conley's home— lay 
just beyond the spires of downtown's Terminal Station. This pie-shaped sec- 
tion of eroded red-clay hills and gullies was wedged between a railroad 
right-of-way and the all-black Atlanta University complex, which included 
not just AU but Clark, Spelman and Morehouse Colleges. The neighbor- 
hood had accommodated a majority of the new arrivals who since 1890 had 
doubled the capital's Negro population. Here, in shotgun shanties lining 
unpaved, refuse-choked streets, unskilled men, women and children lured 
from the depressed agricultural counties to the south by, as one put it, "the 
smell of money" inhaled instead the acrid aromas of raw sewage and disap- 
pointment. Here, human suffering was quantifiable: the average life span 
was thirty-five years. 

Vine City's primary export to white Atlanta, at least as measured by the 
press, consisted of gambling, guzzling and gunplay. The neighborhood was 
the site of countless "Negro Monte Carlos," gathering spots, in the Journal's 
estimation, for the "colored man who could no more keep out of a crap 
game than he could resist a slice of red watermelon on the hottest day of 
July." Then there were the section's many "blind tigers," sources of refresh- 
ment and, like the illicit casinos, objects of frequent police raids. In these 



A CLEAN NIGGER 121 

parts, things were lively, and when they were not, they were often deadly. 
The April 2, 19 13, Constitution carried a typical dispatch out of Vine City: 

After an evening's festival and entertainment, a score of negro merry- 
makers at 45 Rock Street were thrown into excitement when shooting 
broke out among several of the celebrators and one of them, George Ben- 
son, dropped down dead at the hour of midnight. From midnight till dawn 
of yesterday morning police and detectives were busy searching the neigh- 
borhood arresting all they could find who were known to have been at the 
ill-fated carousal. 

Sooner or later, many Vine City residents appeared before Judge Nash 
Broyles, the longtime magistrate of Atlanta's Recorder's Court. "Jedge 
Briles," as he was known to blacks, meted out justice to a disproportionately 
high number of Negroes (of 14,045 cases tried in 1900, 9,500 involved 
blacks). For reporters, the judge's courtroom was a prime source of mate- 
rial, and for novices, a visit constituted a rite of passage. Shortly after 
Harold Ross arrived in Atlanta, the Journal dispatched him there. Writing 
in his characteristic first-person-plural voice, he recorded what he saw: 

Being of that vast class of society which calls itself respectable, we have 
never been in police court before and are, therefore, shocked by what con- 
fronts us. Negroes— scores of them— banked up on tiers of benches on one 
side of a railing which divides the room in half, a dozen policemen lolling in 
chairs near the judge's rostrum— all of this is disconcerting. It is not even a 
pleasing sight. But we are out to see the police court! So we will subdue for 
the nonce our first and decidedly respectable inclination to leave and take 
seats among the policemen. 

Most reporters who spent time in Judge Broyles's court found the assign- 
ment more congenial than Ross's account suggests he did, cranking out 
sketches that reinforced white Atlantans' views. A Constitution account of 
some byplay that ensued one afternoon in 1910 during a debate between 
Broyles and a Negro defendant regarding the identification of a certain 
powdery white substance is emblematic: 

"Shucks, jedge, I'll just show you dat ain't no cocaine." Two long, black 
fingers trembling with eagerness shot across the bar of justice and dipped 
into the little black box which Recorder Broyles held in his hand and an 
instant later, Ben Green, a denizen of Darktown, was smacking his lips in 
absolute disregard of fines or jail sentences. Ben had had his "dose." 



122 AND THE DEAD SHALL RISE 

Predictably, the citizens of Vine City were not amused by Nash Broyles. 
Over the years he had sentenced thousands of them to the Atlanta Stock- 
ade. The prison— which even now dominates a high bluff on the city's east- 
ern fringes— took its cue architecturally from the Tower, right down to the 
crenellated ramparts. But where the Tower merely looked medieval, the 
Stockade was a genuine throwback. A 1909 investigation by the Georgian 
determined that cell blocks were infested by rats. Inmates wore riveted 
shackles, and troublemakers were strapped into the "bucking machine," a 
device of the warden's own invention. Among the blacks tortured in this 
apparatus was a thirteen-year-old girl who later died. As Judge Broyles 
freely admitted, he would never consign white children to the stockade, for 
"to do so would mean their complete ruin." 

That Atlanta's Negroes did not demand better treatment— that they did 
not rise up in protest— was due to the vigilant efforts of the twin hobgoblins 
the city's whites had contrived to keep them in their place: Jim Crow and 
Judge Lynch. 

Atlanta was the capital not only of the New South but of the Jim Crow 
South. In 1905, the Georgia general assembly, responding to the influx of 
blacks pouring into the city, had enacted one of the region's first Jim Crow 
ordinances, the Separate Park Law. Soon thereafter, restaurants, bars, train 
cars, barbershops, elevators, the Grant Park Zoo, haberdasheries, even the 
Carnegie Library were segregated by race. 

Atlanta's Negroes were also held in check by an ominous extralegal 
authority. Between 1882 and 1930, Georgia recorded 508 lynchings (only 
Mississippi eclipsed this number). "In almost every other state," one his- 
torian later noted, "the practice hit a peak between 1880 and 1900 and 
remained steady or declined thereafter; however Georgians lynched more 
blacks between 1900 and 1920 than they had in the previous twenty years." 
Most such atrocities took place in rural communities, but not always. 

On a Saturday afternoon in late September 1906, Atlanta's 3 afternoon 
newspapers— the Journal, the Georgian and the Evening News (soon to 
merge with the Georgian)— had reported the rape of a white woman by a 
"black fiend." With the state having just endured a gubernatorial campaign 
that turned on the issue of disfranchising Negroes, the stories were incendi- 
ary. Still, a disaster might have been averted had it not been for the News. In 
the space of just a few hours, the paper issued several extras, each bannered 
by irresponsible and fallacious headlines: two assaults, third assault, 
fourth assault. By sundown, some 5,000 angry whites had gathered on 
Decatur Street. From the top of a car, Mayor Jimmy Woodward had begged 
for calm, but the crowd ignored him. By 11:00, the mob had increased to 
11,000, and its members were well armed— one hardware store sold $16,000 



A CLEAN NIGGER 123 

worth of guns and ammunition that evening. It was at this point that shots 
rang out. The two black barbers on duty at Herndon's Barber Shop offered 
no resistance, but they were murdered anyway, their bodies dumped at the 
foot of the Marietta Street monument to the bard of the New South, Henry 
Grady. Thereafter, chaos reigned. As one contingent of rioters bludgeoned 
a crippled black shoeshine boy in the middle of Peachtree Street, another 
stormed a hotel, killing three Negro passersby. A third group breached a 
trolley station and began pulling black passengers from their seats. All the 
while, the police refused to intercede, and Governor Joseph M. Terrell ini- 
tially turned down a request to declare martial law. 

By the time the militia was summoned, the worst was over. When Sunday 
dawned, 20 Negroes lay dead. 

Sunday night, when the reassembled white mob marched again— this 
time on Darktown, the east side counterpart to Vine City— the torch- 
carrying vanguard was met by a hail of bullets, and its members retreated. 
As the evening wore on, several other assaults were similarly repulsed. 
Atlanta's Negroes, armed with guns shipped south in caskets earlier in the 
summer by a Chicago undertaker, had made their stand. While fighting 
would resume on Monday, black leaders cited the defense of Darktown as 
the turning point in the conflict. The irony here was not lost on these lead- 
ers. In the words of William Crogman, future president of Clark College: 
"The whites kill . . . good men. But the lawless element, the element we 
have condemned fights back, and it is to these people that we owe our lives." 

When the rioting ceased, 25 Negroes were dead, and 150 had been 
wounded. (Just one white was listed as killed, although years later a black 
mortician asserted that the police, striving to minimize casualties, ordered 
him to bury several whites in Negro cemeteries under cover of darkness). 
Moreover, a terrifying message had been delivered. A letter to the Geor- 
gian's editor put it succinctly: "Let's continue to kill all negroes who commit 
the unmentionable crime and make eunichs of all new male issues before 
they are eight days old." Though such surgical solutions were not in this 
instance implemented, the effect of such talk was profound. In the wake 
of the 1906 clash, "good darkeys" bowed and shuffled a bit more obsequi- 
ously, while "bad niggers" juked and jived a bit more cartoonishly. Either 
way, they kept out of white folks' line of fire by sinking into minstrel show 
Negroism. (For those who protested, retribution was swift. Jesse Max Bar- 
ber, editor of Atlanta's Voice of the Negro, fled to Chicago after the author- 
ities threatened to sentence him to the chain gang unless he retracted a 
letter to the New York World accusing Atlanta's newspapers of instigating 
the riot.) The extent to which such behavior was an act varied from indi- 
vidual to individual, but one thing is certain: Only a damn black fool would 



124 AND THE DEAD SHALL RISE 

not have acted like a damn black fool had he found himself in Jim Con- 
ley's shoes. 



Despite the fact that Jim Crow and Judge Lynch were so firmly ensconced, 
an altogether different black Atlanta— one of financial and cultural attain- 
ment—was arising a few blocks north of Darktown as well as around the 
west-side Negro colleges. This community was spurred by catalysts from 
both without and within Dixie. 

The catalyst from without was the very embodiment of America's Robber 
Baron might: John D. Rockefeller. Since 1882, when he donated $250 to the 
struggling all-black Atlanta Female Baptist Seminary, Rockefeller, a devout 
Baptist, had functioned as the great white angel to the city's education- 
minded Negro aspirants. In 1884, when the Standard Oil magnate and his 
wife, the former Laura Spelman, visited Atlanta to check on the seminary's 
progress, the trustees changed the school's name to Spelman College. In the 
wake of this emotional event, Rockefeller began buying land on Atlanta's 
west side, providing the real estate not only for Spelman's expansion but for 
two new colleges for Negro men— Clark and Morehouse. In 1886, Rocke- 
feller Hall, Spelman's first brick building, was completed, and over the years 
it had been joined by other impressive structures. By 1913, graduates noted 
for their Christian zeal and Victorian manners were marching forth yearly 
from these institutions. 

The catalysts from within were, in their way, also Rockefelleresque— 
visionary black capitalists who saw in the vacuum the Jim Crow South had 
created fertile ground for businesses that could provide goods and services 
to the neglected Negro market. On April 1, 1913, several hundred well- 
dressed Negroes had gathered on Auburn Avenue, Atlanta's Great Black 
Way, to dedicate the most visible manifestation of this homegrown Negro 
achievement: the $110,000, five-story Odd Fellows Building, the city's first 
office structure paid for and built by blacks and as such a symbol of the 
race's strivings. 

Like several of Atlanta's other notable Negro enterprises— most espe- 
cially Standard Life Insurance and Atlanta Mutual Life— the Odd Fellows 
offered something blacks could not obtain elsewhere: loans at fair rates. By 
1916, the society boasted assets of $1 million. 

In most cases, the fiscal well-being of fledgling black concerns like the 
Odd Fellows was precarious. In the 1920s, the Odd Fellows, owing to a feud 
among members, collapsed into receivership, while Standard Life fell into 
the hands of outsiders. Still, that such operations had opened their doors at 
all signaled a new day for Georgia blacks, and in the case of Atlanta Mutual 



A CLEAN NIGGER 125 

Life, which was a genuine and enduring success, the benefits were not just 
monetary. 

Atlanta Mutual was the brainchild of Alonzo F. Herndon, who domi- 
nated not only the black community's finances but its politics (he helped 
found the NAACP). And he owed it all to his skills in the tonsorial arts. 
Simply put, Herndon gave a stylish haircut. 

Born a slave, Herndon had opened his eponymously named barbershop 
shortly after arriving in Atlanta in 1882. Due to his deft touch with a blade 
and his elegant bearing, Herndon's business prospered from the start, 
attracting an all-white clientele that included lawyers and politicians from 
every part of Georgia. Eventually, Herndon moved uptown to Peachtree 
Street, in 1913 expanding and redecorating his shop. Now Dixie's Beau 
Brummels entered this manly sanctum through sixteen-foot mahogany- 
and-beveled-glass doors (copies of a pair Herndon had admired during a 
vacation to Paris) that opened into a room tiled floor to ceiling in white 
marble and lit by bronze electric chandeliers. Lining the walls, twenty-three 
chairs attended by liveried Negro barbers beckoned. 

By keeping the South's white bosses talcumed and trimmed, Herndon 
became a millionaire, and in 1905, he founded Atlanta Mutual. Within six 
years, the business had grown from a one-room outfit into a behemoth 
boasting 70,000 policyholders and 84 branch offices. 

Herndon's enduring legacy to black Atlanta can be seen in the institu- 
tions he endowed, institutions that not only provided a setting for Negro 
society but cast spiritual and educational light into the firmament. At the 
center of his elite black universe stood the First Congregational Church, a 
stone chapel that to this day presides over Courtland Street in East Atlanta. 
The building was erected in 1908 and featured a library, a small gym and 
cooking facilities that were the envy of both black and white Christians 
throughout the city. The men and women who filled the sanctuary on Sun- 
days included lawyers, educators and doctors who gave their prayers to 
God and their votes to the Republican Party. Testifying to the congrega- 
tion's ties to the party of emancipation is the fact that President Theodore 
Roosevelt attended the dedication services. 

In the end, what made the First Congregational Church a force in black 
Atlanta was its pastor. The Reverend Henry Hugh Proctor stood six feet six 
inches tall, and out of doors he always wore a black Stetson and a long 
black double-breasted jacket with a two-button flyaway tail. "When you 
saw him walking down the street," recalled his friend and parishioner Kath- 
leen Adams, "you knew he was a godly man. Small children pictured God as 
looking like him." But Proctor was not godly just in bearing. Son of a Ten- 
nessee slave, he was a graduate of Nashville's Fisk University and had stud- 



126 AND THE DEAD SHALL RISE 

ied at Yale's Divinity School. (He did not finish his doctorate, but he 
completed a thesis entitled "The Theology of Slave Songs.") 

Despite Proctor's academic affinity for Negro spirituals, his pulpit styl- 
ings bore no resemblance to those soulfully gyrating, amen-riddled per- 
orations that left congregations in so many of Atlanta's black houses of 
worship slain in the spirit. Declared Kathleen Adams: "Reverend Proctor 
was a teacher in his pulpit. His language was superb and dignified. The only 
man I ever heard who matched him was W.E.B. Du Bois. Church was used 
as a schoolroom." 

Henry Hugh Proctor's friends included the great Negro leaders of the 
era. When visiting Atlanta, Booker T. Washington usually stayed with him. 
At the same time, Proctor was on good terms with the renowned educator's 
avowed foe, Atlanta University's W.E.B. Du Bois, whose book The Souls of 
Black Folk took Washington to task for capitulating to the white man's view 
that black colleges should provide industrial as opposed to liberal arts edu- 
cations. 

That Proctor could maintain a relationship with a radical such as Du Bois 
(the author, sociologist and NAACP cof ounder resigned from Atlanta Uni- 
versity's faculty in 1910 after his militant opinions led to a clash with the 
administration) bespoke great diplomatic skills, for he was himself a concil- 
iator when it came to whites. Proctor's sermons were often homilies taken 
from the lives of such men as Rockefeller and Roosevelt. Meanwhile, he 
regularly solicited funds from the likes of Coca-Cola's Asa G. Candler. 
Then there was the fact that his Negro critics accused him, so to speak, of 
harboring Caucasians in the woodpile. 

The charge against Proctor and his parishioners was based on skin pig- 
mentation, but in a broader sense, it went to the heart of the divide that sep- 
arated Atlanta's uptown blacks from their poor country cousins. Benjamin 
Davis, publisher of the city's most combative Negro newspaper, the Atlanta 
Independent, frequently articulated the complaint. In his editorials, Davis 
accused Proctor and his flock of "having exclusive mulattoes in their society 
and for their associates." He believed that the Congregationalists practiced 
their own form of segregation. 

Davis was particularly vexed by the sponsors of a 19 14 black medical 
convention who asked that "only light-skinned Atlanta negroes" attend 
their soiree. He also resented the fact that the Owls, Atlanta University's 
most exclusive fraternity, selected members "on color and financial status." 
As John Dittmer notes in Black Georgia in the Progressive Era, igoo-1920: 
"Mulattoes as a group had economic and educational advantages dating 
back to slavery, when they made up a disproportionately large percentage 
of house servants and free blacks. As sons and daughters of slaveholders 
they often received special training and privileges . . . Subsequent economic 



A CLEAN NIGGER 127 

success enabled them to educate their own children, who in turn became 
doctors, teachers, and business leaders." Recipients of this good fortune dis- 
played prejudice toward the rural blacks who by 1900 had begun streaming 
into the city. Kathleen Adams spoke for her crowd when she snapped: "I 
remember when Martin Luther King [Sr.] came to town in the back of a 
wagon." (When the father of the civil rights leader arrived around 1919, he 
actually drove a Model T, but by his own confession, he was a "country 
bumpkin.") 

Yet the hauteur of this light-skinned aristocracy notwithstanding, Ben- 
jamin Davis's reasoning collapsed in the face of one inarguable fact: Nei- 
ther Jim Crow nor Judge Lynch bothered making the distinctions that so 
troubled him. Furthermore, men like Herndon and Proctor, while clearly 
sophisticates, earnestly attempted to raise up the very Negroes whom Davis 
believed they scorned, and their principal vehicle was education. As Proc- 
tor liked to say: "Our church is the mother of Atlanta University." 

First Congregational provided Atlanta University's endowment. To be 
sure, AU and neighboring Morehouse, Clark and Spelman exposed their 
students to a life beyond the ken of the Vine City children who lived within 
sight of the AU clock tower. (Freshmen grappled with Cicero's De Senectute 
and De Amicitia and Xenophon's Anabasis, while seniors took Du Bois's 
Afro-American history class.) But the colleges' alumni and by extension 
the Negro gentry did not ignore their unlettered brothers and sisters. Many 
graduates of Atlanta University went into Vine City and, in classrooms that 
public school superintendent William Slaton, the governor-elect's brother, 
termed "a disgrace to civilization and unfit for cattle," taught youngsters to 
read and write. Forty-five percent of the city's Negro teachers were AU 
products, and most of the others came from Morehouse and Spelman. 

It was in this way that Atlanta's black aristocracy ministered to the mul- 
titude. Here was how even the unlikeliest of Vine City characters could 
have acquired the tools that enabled initiates to decipher and form written 
words and enter the larger world. 

While it never would have occurred to Detectives Black and Scott to ask, 
Jim Conley was one of these initiates. Indeed, he'd been directly touched by 
the institutions John D. Rockefeller, Alonzo Herndon and Henry Hugh 
Proctor built. In the late 1890s, Jim had attended Mitchell Street Elemen- 
tary, Atlanta's best Negro public school. There, he'd been tutored by Alice 
Carey (Spelman, 1893) and Ara Cooke (Atlanta University, 1896). Mrs. 
Carey was Mitchell Street's principal, Miss Cooke a teacher, and though 
they had Jim as a pupil for only two years, by the time he left, he could read 
and write. 



128 AND THE DEAD SHALL RISE 

Just how long Conley thought he could fool John Black and Harry Scott 
with his impersonation of a mumbling, subliterate Rastus is unknown. Most 
likely, he believed the detectives would never catch on. Yet on Friday, 
May 16, the police began to perceive their prisoner if not for who he was, 
then at least for who he wasn't. 

This revised portrait of Conley might never have emerged had not two 
Pinkerton operatives paid a call at the Southwest Atlanta home of Mrs. 
Arthur White. Why it had taken the detectives so long to renew their interest 
in Mrs. White— who'd figured previously in the investigation due to the fact 
that on April 26 she'd dropped by the factory to see her husband, one of the 
mechanics who'd been working on the fourth floor— is uncertain. In their 
initial meeting, Leo Frank had told Harry Scott that Mrs. White had men- 
tioned seeing a strange black man lurking in the lobby during her visit. At the 
time, no one followed up, but upon hearing Mrs. White repeat the story ("To 
the best of her recollection," the Pinkertons reported, "he was a black negro 
and dressed in dark blue clothing and hat"), the agents thought of Conley. 
After finishing with Mrs. White, they rushed to headquarters. There, in a con- 
ference with John Black, they inquired into the status of the man who at this 
juncture had been sitting uncharged in the police lockup for two weeks. 

What inspired the detectives' next move has always been disputed. Sub- 
sequently, Frank would claim that he was "the man who found out or paved 
the way to find out that Jim Conley could write," asserting that upon learn- 
ing of the authorities' interest in Conley, he sent a messenger bearing this 
intelligence to the Pinkertons. Perhaps so, but in the report the agents sub- 
mitted to both defense counsel and the police, they failed to mention 
Frank's contribution. They wrote that following their meeting with John 
Black, they had gone to the National Pencil Company and questioned E. F. 
Holloway and assistant superintendents Herbert Schiff and N. V. Darley as 
to Conley's ability to write. It was there, they reported, that "Mr. Holloway 
stated that Conley could read and write for he had often seen the negro 
with pencil and pad taking stock in the various bins." It was also there that 
the operatives learned that Frank had been paying the jewelry firm of 
Patrick & Thompson a dollar a week from Conley's salary, which suggested 
a previously unknown intimacy between boss and employee. 

Acting on the suggestion of either Schiff or Frank, who later contended 
that he instructed his emissary to tell the investigators to "look into a 
drawer in the [office] safe where they would find the card of a jeweler from 
whom Conley bought a watch on the installment," the Pinkerton agents vis- 
ited Patrick & Thompson. There, an employee gave them a contract bearing 
Conley's signature. Additionally, the employee told the men they would 
find similar documents at Saul & Abelson and Jones & Phillips Jewelers. 



A CLEAN NIGGER I29 

At this point, the agents began to realize the consequence of their discov- 
ery, and after securing the other contracts, they returned to the Pinkerton 
offices and made a comparison of Conley's signatures with photographic 
copies of the notes found beside Mary Phagan's body. According to their 
report, the results were conclusive: "The handwriting appears to be identi- 
cal, all characteristics being similar." 

On the strength of this finding, the Pinkerton agents descended into Vine 
City to interview Lorena Jones. The men met Conley's common-law wife at 
her 172 Rhodes Street home. She divulged two important clues. First she 
said that Conley, contrary to his original claim, owned four shirts, a revela- 
tion that gave the lie to his reason for washing the blue one. Then she 
alluded to a disturbing incident that occurred a few hours after little Mary's 
murder and suggested that at the time her husband was eerily animated. As 
the investigators reported it: 

About 3:00 p.m. on Saturday, April 26th 1913 she left James Conley sitting 
in front of the fire place in her home while she went to a nearby store to get 
some snuff; that when she returned to her home she did not see Conley 
and she stepped to a washstand . . . and Conley jumped up from behind 
the washstand and she said that she screamed and Conley said he hid from 
her just to scare her. 

By Saturday morning, word of the Pinkerton agents' breakthroughs had 
reached nearly everyone connected with the case. But what the detectives 
perceived and what Conley revealed still differed. (Indeed, this was the 
weekend Conley made the statement maintaining that he'd spent April 26 
innocently.) As Harry Scott reported: "We were unsuccessful in having 
Conley make any damaging admissions in this case." Moreover, when the 
detectives brought Mrs. Arthur White to Decatur Street to view a lineup 
that included Jim and twelve other blacks, the results were inconclusive. 
First she picked out "a negro wearing a green derby hat," then Conley. 
Regardless of the headway the investigators made on Friday, Jim remained 
elusive. On Sunday, the police decided to submit him to the specialty of the 
station house, the third degree. 



On what was otherwise a dull and drowsy afternoon, Harry Scott and John 
Black removed Conley from his cell, placed him in a six-by-eight-foot cubi- 
cle, beamed a light in his face and actually tossed the key out the open tran- 
som into the hallway where the Constitution's ubiquitous Britt Craig was 
stationed. From this vantage, Craig managed to hear what occurred in the 



130 AND THE DEAD SHALL RISE 

tiny room, and his account gave Atlantans the most detailed picture of how 
the detectives started to drag a story from Conley: 

"Well, Jim," Black began, "we've got the deadwood on you. Better 
cough up and tell us something." 

"Honest, white folks, I swear 'fore God and high heaven I don't know a 
thing," Conley replied. 

"Listen," Scott asked as he made a show of pulling a piece of paper from 
his pocket, "can you write?" 

"Naw, sir, I can't. I never could." 

"Will you swear it?" 

"I shore will." 

"Do you know the penalty for perjury?" 

"Naw, sir— what is it?" 

"Twenty in the gang— maybe more." 

"What's perjury?" 

"Swearing a lie." 

"But I ain't goin' to swear no lie." 

"You will if you swear you can't write," Scott replied, unfolding a watch 
contract bearing Jim's signature and handing it to the prisoner. 

According to Craig, Conley was momentarily dumbfounded, but after 
seeing that the officers indeed had the deadwood on him, he conceded: 
"White folks, I'm a liar." 

Following this admission, Scott and Black asked Conley to jot down 
his ABCs, which he did. Then one of them ordered: "Write, 'that long tall 
black negro did this by himself.' " Upon hearing the words, Jim winced, 
but slowly, deliberately, he again began scribbling. When he was finished, 
his inquisitors collected his work, observing that he favored some of the 
same idiosyncratic spellings that graced the murder notes. With no further 
ado, the detectives accused Conley of writing the messages found by little 
Mary's body. 

"I didn't do it," Jim swore. " 'Fore God, I didn't." 

This protestation inspired Scott to mutter: "You'll be hung just as sure 
as you're a foot high and black." 

"But I ain't guilty," Jim again protested. "I don't know a thing about 
them notes or that killing— honest, white folks." 

To which Black added as if for good measure: "There ain't a jury in the 
world— even a nigger jury— that'd believe you didn't kill this girl. They'd 
hang you or lynch you— likely lynching." 



A CLEAN NIGGER I3I 

On that note, the detectives put a halt to the grilling, but instead of 
returning Conley to his old quarters, they took him to a basement level iso- 
lation cell described in the press as dark and desolate. There, Jim would 
ponder the events of the past few hours. 



How long Conley remained in solitude is unknown, but on Saturday morn- 
ing, May 24— a week after being submitted to the third degree and just 
hours before the grand jury indicted Leo Frank— he summoned John Black 
and uttered the words that would eventually enthrall all Atlanta: "Boss, I 
wrote those notes." 

Within minutes, Conley found himself standing in Newport Lanford's 
office. There, in the presence of Harry Scott, C. Gay February, Lanf ord and 
Black, the Negro enlarged upon his startling admission. Realizing the 
import of Jim's testimony, the officers soon escorted him to the Thrower 
Building. Hugh Dorsey had earlier been informed that Conley could write, 
but he had put little stock in the news. His reaction to this latest revelation 
was apparently not much more enthusiastic. (The solicitor did tell the grand 
jurors of Jim's contention, but he would later assert that the body returned 
its indictment on the strength of the case as he'd presented it.) However, he 
was intrigued enough that he sat in with the group from headquarters as 
February— who'd figured so prominently in both the 1910 detective depart- 
ment scandal and the Felder episode— took Conley 's statement: 

On Friday evening before the holiday, about four minutes to one 
o'clock, Mr. Frank came up the aisle on the fourth floor . . . where I was 
working and asked me to come to his office . . . When I went down ... he 
asked me could I write and I told him yes I could write a little bit, and he 
gave me a scratch pad and . . . told me to put on there "dear mother, a long, 
tall, black negro did this by himself," and he told me to write it two or three 
times on there. I wrote it on a white scratch pad, single ruled. He went to 
his desk and pulled out another scratch pad, a brownish looking scratch 
pad, and looked at my writing and wrote on that himself ... he asked me if 
I wanted a cigarette, and I told him yes . . . and he pulled out a box of ciga- 
rettes . . . and in that box he had $2.50, two paper dollars and two quarters, 
and I taken one of the cigarettes and handed him the box and told him he 
had some money in the box, and he said that was all right I was welcome to 
that for I was a good working negro around there, and then he asked 
me ... if I knew the night watchman and I told him no sir, I didn't know 
him, and he asked me if I ever saw him in the basement and I told him no 
sir, I never did see him down there, but he could ask the fireman and 



132 AND THE DEAD SHALL RISE 

maybe he could tell him more about that than I could, and then Mr. Frank 
was laughing and jollying and going on in the office, and I asked him not to 
take out any money for that watch man I owed, for I didn't have any to 
spare, and he told me he wouldn't, but he would see to me getting some 
money a little bit later. He told me he had some wealthy people in Brook- 
lyn and then he held his head up and looking out of the corner of his eyes 
said "Why should I hang?" . . . When I asked him not to take out any 
money for the watch, he said you ought not to buy any watch, for that big 
fat wife of mine wants me to buy her an automobile but he wouldn't do it; 
I never did see his wife. On Tbesday morning . . . before Mr. Frank got in 
jail, he came up the aisle where I was sweeping and held his head over to 
me and whispered ... be a good boy and that was all he said to me. 

Here at last was an answer to the conundrum that had stumped the 
police since Sergeant L. S. Dobbs discovered the murder notes on the fac- 
tory's basement floor, yet it was an answer wrapped in riddles. Conse- 
quently, neither Lanford nor Dorsey expressed much faith in it. To the 
contrary, their initial reaction was one of incredulity, even fear, each con- 
tending that Conley's rambling tale was untrue and a threat to the chain in 
which they'd ensnared the guilty man. The detective chief quickly branded 
Jim's disclosure "false in every detail." Meanwhile, the solicitor spent Sat- 
urday afternoon quizzing Conley, initiating a catechism that would con- 
tinue off and on for two days. As one investigator later declared: "Never has 
a witness been put through such a severe cross-examination." But to no 
avail. Jim "stoutly maintained" his story. 

On Monday, after Black and Scott administered another dictation test 
and Conley again spelled key phrases and words (among them "night 
watchman" as "night witch") just as they were spelled in the genuine items, 
the official skepticism began to diminish. "Conley wrote the notes," one 
detective announced. "It doesn't take an expert to realize that beyond a 
shadow of a doubt his hand penned the words on the two bits of paper." 

Yet despite the growing consensus that Jim wrote the notes, officers still 
doubted the rest of his story. For starters, there was the matter of timing. 
Observed one reporter: "Conley's delay in making his confession until 
Frank's indictment seemed likely is a link against him." Then there was the 
fact that no one at Decatur Street believed that Frank would have asked 
Jim "Why should I hang?" when to do so would have been to confess in 
advance that he was going to commit a capital crime. This objection pointed 
to the most glaring implausibility of all— Conley's claim that the notes were 
composed a day before the murder. Everything about the evidence sug- 
gested that the act had been spontaneous. As the Georgian remarked: "No 
theory that has placed the responsibility of the crime upon Frank has held 



A CLEAN NIGGER 133 

that he planned it deliberately a day before it was committed. The unani- 
mous theory of those who have believed Frank guilty is that he did it on the 
necessity of the moment to prevent the girl from revealing the attack which 
is supposed to have proceeded the killing. If Conley's story is true, it means 
that the murder was premeditated." Which is why detectives, while conced- 
ing that Jim wrote the notes, were convinced he was lying about the rest 
of it. 

The squad at headquarters was not alone in expressing such qualms. As a 
whole, the press remained similarly unpersuaded. At the Journal and the 
Constitution, writers essentially ignored Jim's affidavit. At the Georgian, 
meanwhile, the smart money —influenced not a little by the sheet's biases— 
was betting that Jim himself would be indicted for the murder. Argued the 
Hearst forces: "Careful study of the negro's story has revealed absurdities 
in its structure which bring the deed to Conley's door." 



Disturbed by the inconsistencies in Conley's exceedingly peculiar tale and 
aware that he could as easily ruin the state's case as strengthen it, the detec- 
tives now chose a new tack. Over the next three days, Harry Scott persist- 
ently accused Jim of murdering Mary Phagan and vowed to see him hang 
for it. Meanwhile, John Black commiserated with Conley, bringing him 
drinks, pies, sandwiches and consolation. 

Not surprisingly, the Georgian accused the officers of manipulating Con- 
ley to deliver testimony damaging to Frank: "The police questions were, of 
course, all put with the idea of gaining information against Frank. The 
police refused to admit that suspicion was turning or should turn to Conley, 
who has told one falsehood after another since his arrest. They tried res- 
olutely to construe every one of his statements as against Frank and would 
not admit that the continued contradictions of the negro made his value as 
a witness next to nothing." Simultaneously, however, the Journal contended 
that the investigators "questioned [Jim] as if they are convinced he commit- 
ted the murder." 

Whatever the detectives' motives, their actions left Conley scared and 
disoriented. Observed the Constitution: "Conley grew weak, lost appetite, 
slept very little." On Tbesday, May 28, the Negro was removed from his cell 
and again taken to Newport Lanford's office. There, he confronted two 
sights calculated to heighten his distress. One was the person of E. F Hol- 
loway, the man who'd spotted him washing his shirt on May 1. Holloway 
was there to state that he had also seen Jim somewhere else— at the pencil 
factory on April 26. But it wasn't Holloway's presence that undid the 
Negro. Rather, it was a copy of that afternoon's Georgian. Boomed the 
page-one banner: suspicion turned to conley; accused by factory 



134 AND THE DEAD SHALL RISE 

foreman. In the story that inspired this screamer, Holloway proclaimed 
that he was "thoroughly convinced that [Conley] strangled Mary Phagan 
when about half drunk." After reading the article, Jim requested a private 
audience with John Black. The next day, C. Gay February notarized what 
would be referred to as Conley's second affidavit: 

I make this statement, my second statement, in regard to the murder of 
Mary Phagan at the National Pencil Factory. In my first statement I made 
the statement that I went to the pencil factory on Friday, April 25, 1913, 
and went to Frank's office at four minutes to one, which is a mistake. I 
made this statement in regard to Friday in order that I might not be 
accused of knowing anything of this murder, for I thought that if I put 
myself there on Saturday, they might accuse me of having a hand in it, and 
I now make my second and last statement regarding the matter freely and 
voluntarily, after thinking over the situation, and I have made up my mind 
to tell the whole truth . . . without the promise of any reward or from force 
or fear of punishment in any way. 

I got up Saturday morning, April 26th, between 9 and half past 9. 1 was 
at home, 172 Rhodes Street. There is a clock on the Atlanta University and 
I looked at that clock after I put on my clothes; I went to the door and 
poured some water out of the wash pan . . . Then I washed my face and I 
eat some steak and some liver and bread and drank a cup of tea, and then 
I sat down in a chair a little while, about ten minutes, I guess, and then I 
told my wife to give me back the three dollars and I would get some paper 
money to keep her from losing it, to pay her rent with, and she gave it to 
me, and I told her I was going to Peters Street, and I went to Peters Street. 
[Here, Conley repeated the description of his visits to the Butt-In Saloon 
and other haunts.] Then I started to the Capital City Laundry and on my 
way there I met Mr. Frank, at the corner of Forsyth and Nelson Streets 
going to Montags, and he told me to wait a few minutes, and he asked me 
where I was going, and I told him I was going to . . . see my mother, and he 
didn't say nothing, only he said to wait a minute until he come back . . . and 
I stood there until he come back, he was gone about 20 minutes, I guess. He 
come back and told me to come to the factory, that he wanted to see me, 
and I went to the factory with him, walking behind him . . . Just to the right 
of the steps as you go in, he put a box for me to sit on. There was some great 
big boxes back further. He told me to sit down there until I heard him 
whistle. He just took his foot and pushed a box over there for me to sit on. 
Then he told me not to let Mr. Darley see me. [Here, Conley provided an 
account of the people— among them Mrs. White, E. F Holloway, a young 
factory girl named Mattie Smith, and N. V. Darley— who came in and out 
of the plant that morning.] After . . . about 15 or 20 minutes . . . there . . . 



A CLEAN NIGGER 135 

wasn't any passing at all, and I sat there on the box with my head against 
the trash barrel. I stretched my feet out and put my hat in my lap . . . and 
the next thing that attracted my attention, Mr. Frank whistled for me twice, 
just like this (indicating), and when he whistled I went on up the stairs and 
the double doors on the stairway were closed and I opened them and they 
shut themselves, and Mr. Frank was standing at the top of the steps and he 
said, "You heard me, did you?" and I said, "Yes, sir," and Mr. Frank grabbed 
me by my arm and he was squeezing my arm so tight his hand was trem- 
bling. He had his glasses on, and he had me just like he was walking down 
the street with a lady, and like he didn't want me to look behind me at all, 
and I thought it was because he had me so tight that made him tremble, 
and he carried me through the first office and into his private office, and 
then he come back in there, and he didn't say nothing, he grabbed up a box 
of sulphur matches, and he went back in the outer office, the door was open 
between his office and the outer office, and then he saw two ladies coming 
and he said to me, "Gee, here comes Miss Emma Clark and Miss Corinthia 
Hall" and he came back in there to me, he was walking fast and seemed to 
be excited, and he said to me, "Come right in here, Jim," and he motioned 
to the wardrobe and I was a little slow about it and Mr. Frank grabbed me 
and gave me a shove and put me in the wardrobe and he shut the doors and 
told me to stay there until after they had gone, and I just heard Miss Emma 
say, "Good morning, Mr. Frank are you alone?" and Mr. Frank said 
"Yes." ... I stayed in the wardrobe a pretty good while, for the whiskey I 
had drank got me to sweating . . . After a while, Mr. Frank ... let me 
out . . . and I said, "I got too hot in there," and he said, "Yes, I see you are 
sweating." . . . Then Mr. Frank asked me to sit down in a chair . . . and he 
said, "Jim, can you write?" [Here, Conley recounted how Frank, after dic- 
tating the murder notes to him, gave him a box of cigarettes.] . . . Then I 
asked Mr. Frank if that was all he wanted with me right now, and he said 
yes . . . and I went to the beer saloon across the street and opened the cig- 
arette box and it had two paper dollars in there and two silver quarters, 
and I laughed and said, "Good luck has done struck me," and I bought a 
ten-cent double header and then went back to Peters Street . . . and I 
walks up there to the moving picture show and looked at the pictures and 
they didn't seem to be any good . . . and I struck out for home, and when I 
got home it was about half past two o'clock, and I took the bucket and 
went to Joe Carr's at Mangum and Magnolia Street, and got fifteen cents 
worth of beer in it and came back home and sent the little girl to get a 
dime's worth of stove wood and a nickle's worth of pan sausage, and I eat 
half the pan sausage up raw, and I give my old lady $3.50, and the other lit- 
tle change I kept it, and I laid down across the bed and there is where I 
stayed until about half past eight that night, and I got up and set in front of 



I36 AND THE DEAD SHALL RISE 

the fire a little while and got to swimming at the head and I didn't leave 
home no more until Sunday. [Here, Conley detailed how he'd spent the 
following day, asserting that he'd not learned that the girl he called 
"Mary Puckett" had been murdered until he returned to work on Mon- 
day.] . . . On Thursday ... I got my subpoena . . . Then I went down to 
wash my shirt so I could have a clean one to wear to court ... I got a little 
rust on it . . . They brought me down here and found there was no blood on 
the shirt, and give me my shirt back, and that's all I know. 

Conley's second affidavit, as opposed to his first, created a sensation. 
Both the Journal and the Constitution splashed the Negro's tale across their 
front pages. The investigators who had labored so long on the case also 
endorsed the statement. Harry Scott insisted that it "had practically cleared 
the mystery and was the most important bit of evidence in the hands of the 
state." At headquarters, the reviews were just as glowing. "The negro Con- 
ley is regarded by detectives as their most material witness," reported the 
Constitution. "He is the missing link, they think, which connects the chain of 
circumstantial evidence which they have gathered." 

Yet for all this, dissenters still could be found. Indeed, there was a nest of 
them at the National Pencil Company. Just hours after Conley's second 
statement was secured, the Journal interviewed Schiff, Darley and Hol- 
loway. With Schiff speaking for all three, the men proposed that the new 
affidavit's principal revelation— the news that Jim was at the scene of the 
crime on April 26— cast suspicion not on Frank but on the Negro: 

Now the theory of the crime we entertain is simply this: Conley came in 
following Miss Smith and expected to rob her as she came down with her 
money. When Mr. Darley happened to come down with her, Conley gave 
up his attempt but continued to wait. Later, he saw little Mary Phagan 
come in and waited until she came down. Then he grabbed her and tried to 
get her purse. A scuffle by the elevator ensued and the negro knocked the 
girl down the elevator shaft. He quickly followed her, going down by the 
trapdoor. He found her cut and bruised and unconscious. Then he tied 
the cord around her neck and choked her to death. He wrote the notes 
himself and then pulled the staple off the rear basement door and left the 
place. 

In sum, the men hypothesized that the murderer was not, as Hugh Dorsey 
contended, motivated by lust but by a pathetic desire to steal the $1.20 in 
wages Mary Phagan had collected the day of the crime. To buttress their 
point, they asked a simple question: What happened to little Mary's purse 



A CLEAN NIGGER 137 

and the two half dollars and change she had received only seconds before 
her death? 

The misgivings cited by the pencil company employees found a sympa- 
thetic ear at the Georgian. Remaining true to its pro-Frank stance, the 
paper observed: "Three responsible officials of the plant have outlined 
plausible theories as to how the negro could have committed the crime. 
They have compiled a most laudable explanation of how he killed the Pha- 
gan girl. With each cross-examination of the negro by the police in their 
attempts to secure more evidence against Frank, Conley has only ensnared 
himself." 

John Black and Harry Scott, however, did not share such a belief. 
Reported the Journal: "Little if any credence is placed by the detectives in 
the theory of the officials and employees of the National Pencil Company 
that Mary Phagan was killed by James Conley and that his motive was rob- 
bery." While the investigators were puzzled by the disappearance of the vic- 
tim's bag and pay, they were sure they'd turn up. Still, the doubts tempered 
the euphoria at headquarters. Moreover, the police developed some misgiv- 
ings of their own. Most vexing was the fact that nowhere in the second affi- 
davit did Jim ever indicate that when he wrote the notes, he knew a crime 
had been committed. By his account, Frank had simply dictated them out of 
the blue. In hopes of getting to the bottom of it all, the detectives decided to 
stage a confrontation between the accuser and the accused. 

Around 8:00 p.m. on Wednesday, May 28, a delegation consisting of 
Chiefs Beavers and Lanford, Harry Scott and Jim Conley marched the few 
blocks from 175 Decatur Street to the Fulton County Tower. At the door, 
the men spoke to Sheriff Wheeler Mangum, who in turn conveyed their 
proposal to his star prisoner, whose friend Milton Klein happened to be vis- 
iting. For Frank, the invitation presented a terrible quandary. If he was 
guilty, the last thing he would have wanted was to sit down with Conley in 
the authorities' presence. Yet there were perfectly innocent reasons why he 
would have been wary, chief among them his memories of the disastrous 
jailhouse session Scott and Detective John Black had brokered between 
Newt Lee and him. 

Legally, as Chief Beavers had been instructed before he embarked on 
this mission, Frank was not required to see anyone outside his lawyer's 
presence— at the time an impossibility, as two days earlier, Luther Rosser 
had taken the train to rugged Rabun County where he was representing 
the Georgia Railway and Electric Company in its ongoing court fight to 
open the Tallulah Gorge power plant. Yet after Frank, using Klein as a 
go-between, declined to meet with Conley, the police cited the decision as 
evidence of the superintendent's involvement in Mary Phagan's murder. 



I38 AND THE DEAD SHALL RISE 

"Detectives who pin faith to the negro's story and believe Frank guilty," 
reported the Constitution, "speculate upon the prisoner's unwillingness to 
face the sweeper. If he is not guilty, they say, he likely wouldn't object to fac- 
ing the negro. They say that it is damaging to his plea of innocence to refuse 
the negro an audience." Eventually, Conley himself seconded this opinion, 
telling the Journal: "I wish they would let me face Mr. Frank and tell him 
just what I have told the detectives. One of us would go down, and it 
wouldn't be me." 

While such insinuations further blackened Leo Frank's reputation, the 
detectives still faced the dilemma that had inspired their attempt to bring 
Conley and the superintendent together in the first place. The inconsisten- 
cies permeating Jim's depositions had not gone away. Accordingly, the offi- 
cers decided to sweat the Negro yet again. 

The Thursday afternoon interrogation of Conley lasted four hours and 
was, by all accounts, the most ruthless grilling he endured. Beginning about 
2:45 in Newport Lanford's office, various officers— among them Lanford, 
Beavers, Harry Scott and Pat Campbell— peppered the Negro with a dizzy- 
ing barrage of questions, making him vividly aware of the treacherous 
ground on which he was treading. Unlike during previous sessions, there 
were few outbursts, and perhaps because reporters had been barred, a tense 
calm prevailed. Attesting to the importance of the examination was the fact 
that Newt Garner— Hugh Dorsey's assistant— shuttled in and out of the 
room every few minutes importing lines of inquiry while exporting answers. 
At times, Garner literally ran between headquarters and the solicitor's 
office. The activity finally came to a halt at dusk when C. Gay February— 
present now at the creation of all of Jim's affidavits— was called to notarize 
yet another. An hour later, the Negro, his fingers twitching nervously, sweat 
streaming off his brow, was escorted back to his cell, and a triumphant group 
of lawmen emerged to meet the press. At last, declared Chief Beavers, the 
Phagan murder had been solved, and shortly thereafter, the police released 
what would come to be known as Conley's third affidavit: 

On Saturday, April 26, 1913, when I come back to the pencil factory 
with Mr. Frank I waited for him downstairs like he told me, and when he 
whistled for me I went upstairs and he asked me if I wanted to make some 
money right quick and I told him "Yes, sir," and he told me that he had 
picked up a girl back there and had let her fall and that her head hit against 
something, he didn't know what it was, and for me to move her, and I 
hollered and told him the girl was dead, and he told me to pick her up and 
bring her to the elevator and I told him I didn't have nothing to pick her up 
with and he told me to go and look by the cotton box there and get a piece 



A CLEAN NIGGER 139 

of cloth, and I got a big wide piece of cloth and come back there to the 
men's toilet where she was, and I tied her up, and I taken her and brought 
her up there to a little dressing room, carrying her on my right shoulder, 
and she got too heavy for me and she slipped off my shoulder and fell on 
the floor right there at the dressing room and I hollered for Mr. Frank to 
come there and help me, that she was too heavy for me, and Mr. Frank 
come down there and told me to pick her up, damn fool, and he run down 
there to me and he was excited, and he picked her up by the feet, her head 
and feet were sticking out of the cloth and then we brought her on to the 
elevator, Mr. Frank carrying her by the feet and me by the shoulders, and 
we brought her to the elevator and then Mr. Frank says, "Wait, let me get 
the key," and he went into the office and got the key and come back and 
unlocked the elevator door and started the elevator down. Mr. Frank 
turned it on himself and we went on down to the basement and Mr. Frank 
helped me take it off the elevator and he told me to take it back there to 
the sawdust pile, and I picked it up and put it on my shoulder again, and 
Mr. Frank, he went up the ladder and watched the trap door to see if any- 
body was coming, and I taken her back there and taken the cloth from 
around her and taken her hat and shoe which I had picked up upstairs right 
where her body was lying and brought them down and untied the cloth and 
brought them back and throwed them on the trashpile in front of the fur- 
nace, and Mr. Frank was standing at the trap door at the head of the ladder. 
He didn't tell me where to put the things. I laid her body down with her 
head towards the elevator, lying on her stomach and the left side of her 
face was on the ground and the right side of her face was up, and both arms 
were laying down with her body, by the side of her body. Mr. Frank joined 
me back on the first floor. I stepped on the elevator and he stepped on the 
elevator when it got to where he was, and he said, "Gee, that was a tire- 
some job," and I told him his job was not as tiresome as mine was, because 
I had to tote it all the way from where she was laying to the dressing room, 
and in the basement from the elevator to where I left her. Then Mr. Frank 
hops off the elevator before it gets even with the second floor and he 
makes a stumble and he hits the floor and catches with both hands, and he 
went on around to the sink to wash his hands, and I went and cut off the 
motor, and I stood and waited for Mr. Frank to come from around there 
washing his hands, and then we went on into the office, and Mr. Frank he 
couldn't hardly keep still, he was all the time moving about from one office 
to the other, then he come back into the stenographer's office and come 
back and he told me, "Here comes Emma Clark and Corinthia Hall." 
[Here, Conley recounted his soujourn in the wardrobe.] Then . . . Mr. 
Frank . . . asked me to write a few lines on that paper, a white scratch pad 



140 AND THE DEAD SHALL RISE 

he had there, and he told me what to put on there, and I asked him what he 
was going to do with it and he told me to just go ahead and write, and then 
after I got through writing Mr. Frank looked at it and said it was all right 
and Mr. Frank looked up at the top of the house and said, "Why should I 
hang, I have wealthy people in Brooklyn," and I asked him what about me, 
and he told me that was all right about me, for me to keep my mouth shut 
and he would make everything all right, and then I asked him where was 
the money he said he was going to give me and Mr. Frank said, "Here is two 
hundred dollars," and he handed me a big roll of greenback money and I 
didn't count it; I stood there a little while looking at it in my hand, and I 
told Mr. Frank not to take another dollar for that watch man I owed and he 
said he wouldn't— and the rest is just like I told it before. The reason I have 
not told this before is I thought Mr. Frank would get out and help me out, 
but it seems that he is not going to get out and I have decided to tell the 
whole truth about this matter. 

With that, the statement ended, although scrawled on its last page was a 
handwritten addendum penned after the text was typed to explain what 
happened to the heretofore never mentioned $200: 

While I was looking at the money in my hands, Mr. Frank said: "Let me 
have that and I will make it all right with you Monday if I live and nothing 
happens," and he took the money back and I asked him if that was the way 
he done and he said he would give it back Monday. 

If the reaction to Conley's first affidavit was disbelief and the reaction 
to his second was grudging acceptance, the response to his third was 
unchecked enthusiasm. Friday morning, Atlantans awakened to a double- 
deck banner atop the Constitution: 

CONLEY SAYS HE HELPED FRANK CARRY BODY 
OF MARY PHAGAN TO PENCIL FACTORY CELLAR 

With this one revelation, dozens of clues gathered during the month since 
little Mary's death— fragments that had heretofore refused to coalesce— 
suddenly adhered to the powerful pull of the Negro's story. Finally, the hair 
on the second-story factory lathe, the blood on the floor and the murder 
notes fit together. "The negro's affidavit," reported the Journal, "is regarded 
by the detectives as the most important link in their chain of evidence 
against the factory official." Echoed the Georgian: "Chief Lanford and 
Scott announced Thursday that they considered the negro's final affidavit 



A CLEAN NIGGER 141 

proof conclusive of the suspected superintendent's guilt and were thereby 
ready to place the case on trial." At last, the city was persuaded that Conley 
had told all, and the odd thing was, it was his initial dissembling that gave 
his ultimate assertions the sharp glint of credibility. As whites saw it, 
Negroes were by nature mendacious. Falsehoods and fabrications clung to 
them like dirt to a boy. Only by submitting them to the rough scrubbing of 
interrogation could the guises and guiles that were their protective col- 
oration be washed away. As Jim himself, when asked what had convinced 
him to open up, would tell writers: "Finally, the thing got to workin' in my 
head so much that I just couldn't hold it any longer. I couldn't sleep and it 
worried me mightily. I just decided it was time for me to come out with it 
and I did. I . . . told the truth, and I feel like a clean nigger." The next day, 
the police would trot out their gleaming black beauty for a triumphant spin 
around the block. 



Shortly after noon on Friday, May 30, Chief Beavers's limousine eased to a 
halt in front of the National Pencil Company. The sight of the vehicle, its 
curtains drawn, sent a buzz through the employees milling about on their 
lunch break. The buzz intensified when the car's occupants— Beavers, New- 
port Lanford and a handcuffed Conley —emerged onto the sidewalk, where 
they were soon joined by Detective Campbell, Harry Scott, Herbert Schiff, 
E. F Holloway and a trailing phalanx of reporters. Once the group entered 
the factory, the police ordered lingering workers to leave, then barred the 
door. Though all of Atlanta would learn about it in the newspapers, only a 
select few would be physically present for Conley's apotheosis. 

After Jim was uncuffed, he walked partway up the stairs leading to the 
office floor. 

"Where did you first see Frank when he whistled to you twice?" some- 
one asked. 

"Right here," Conley replied, pointing to the top of the steps. "He asked 
me if I wanted to make some money right quick and I told him I did. Then 
he said he had picked up a girl back there who had hit her head against 
something and he wanted me to bring her body to the elevator." 

With all eyes now on him, Conley led his auditors to the rear of the metal 
department. There, he pointed out a spot near a men's toilet where he main- 
tained he'd discovered Mary Phagan's body lying doubled up, adding— in 
his first reference to the cause of death— that the cord apparently used to 
strangle the girl had been knotted around her neck, extending at right 
angles on both sides. 

"When I got back here, I got scared and hollered to Mr. Frank and said 



142 AND THE DEAD SHALL RISE 

that the girl was dead," Jim explained. "He was standing in that doorway 
right there. He told me to get a sack and put her body in that." As if on cue, 
Conley began to play out the scene, walking to a box in the middle of the 
room and extracting a piece of bagging, which he held up for all to see, com- 
menting: "This is jus' like I got that day except that this has got a little more 
cotton in it and the other one was slit." 

The task of bundling the body in the bagging was hard, Jim recalled, but 
loading it onto the elevator was harder still. "He [Frank] picked up her feet, 
and I carried her shoulders. Just when we got by the window Frank was so 
nervous that he dropped the girl and her feet dragged on the floor." 

Conley ushered the group to the lift, speaking along the way of how he'd 
waited with the grim cargo while Frank ran to his office to fetch the key that 
unlocked the fuse box. Upon the superintendent's return, Jim said, they'd 
promptly done what he and the party did now— descend to the basement. 
There, Conley resumed his narrative. 

"I took her body out of the elevator. Mr. Frank helped me. He told me to 
take the body up to the trash pile in front of the furnace. I put the girl on my 
shoulders again and walked up there with her and dropped her right there." 
Jim indicated the spot a few feet to the left of the furnace where Newt Lee 
had found "the package." Then he rushed on: "I pulled the bagging out from 
under her and threw it there on the pile of trash in front of the furnace. Mr. 
Frank, he waited there at the trapdoor to see if anyone was coming. Before 
that I went back upstairs and got her hat and shoes and brought them down 
in the basement." 

At this point, Chief Beavers interjected: "Show us the way you left the 
girl's body." Once again acting out the part, Jim dropped to the cinder- 
covered ground. Lying on his left side, he pressed his face into the dirt, 
crooked his right arm under him and splayed his left inertly behind him. His 
feet pointed to the rear of the building. 

Seeing Jim sprawled out that way, Harry Scott whispered to the re- 
porters: "You can't help but believe him." No one disagreed. 

And there was more. After dusting himself off, Conley directed the 
group's attention to the trapdoor at the front of the factory. "Frank climbed 
up this ladder," he said, "and I ran the elevator back up. He met me on the 
first floor and got in the elevator with me and rode with me up to the second 
floor." 

That stated, Jim once again began to perform. Just as he said he'd done 
on April 26, he switched on the lift, paused in the lobby, then continued to 
the office floor. Stopping the car six inches below the lip, he surprised the 
men who'd ridden up with him by tripping and falling to his knees as he 
stepped out— just as he said Leo Frank had done. 

After walking to a sink and washing off —again, just as he said Frank had 



A CLEAN NIGGER 143 

done— Conley led his audience into the superintendent's office, took a seat 
behind the desk and, sticking to the story he'd advanced in his final affi- 
davit, started to soliloquize: "Mr. Frank sat down in his swivel chair and 
turned and twisted for a moment, turning first white and then red and sort 
of gasping as he talked. We heard footsteps outside, and Mr. Frank hurried 
me into this wardrobe." 

Here, Jim paused long enough to hop in and out of the piece of furniture 
before plowing ahead: "He told me to come out of the wardrobe. For a 
minute or two he clasped his hands and swayed about in his chair as if he 
was sick. Then he turned to me and told me to write on a pencil pad which 
was lying on the desk beside me. He dictated and I wrote: 'That long, tall 
black negro did this by himself.' " 

His hands a flurry of activity, Jim indicated the surface upon which he 
said he had penned the murder notes, an inkstand he said Frank had used as 
a paperweight to hold down the first one and the drawer from which he said 
the superintendent had removed a new, different-colored pad. 

"He handed me this pad and then told me to write another note," he 
said. "He dictated this note also and as far as I can [remember] it went like 
this." Whereupon Conley began to write, producing a rough facsimile of 
the second missive: 

Dear mother a long tall black negro did this boy himslef he told me if I 
wood lay down he wood love me play like the night witch did this boy 
himslef. 

After recounting once again how Frank had allegedly asked, "Why 
should I hang when I have got rich folks in Brooklyn?," Jim concluded his 
monologue by racing through the story regarding the $2.50 he'd found in 
the cigarette box and the $200 his boss had proffered only to retract. 

Sensing that the show had ended, Newport Lanford asked Jim a last 
question, one designed to undercut any charges that he had been coerced: 
"Have you been abused or threatened by the officers into making this con- 
fession?" 

"No sir," Conley replied. "The officers have treated me kindly ... I am 
telling this because I want to tell it." 

Not that the reporters needed any such reassurances. To a man, they 
rushed back to their newsrooms and banged out accounts of the production 
they had witnessed that accorded it an unassailable legitimacy. Roared the 
Journal's double-deck banner: 

CONLEY TAKEN TO FACTORY, SHOWS WHERE GIRL WAS FOUND — 
HOW THEY PUT BODY IN BASEMENT 



144 AND THE DEAD SHALL RISE 

Meanwhile, the Georgian, though subtly suggesting that Conley might have 
been parroting a story concocted by the police, also applauded: 

Conley appeared perfectly composed ... his earnest and apparently truth- 
ful bearing gave his dramatic story, told in a matter of fact way, a convinc- 
ing power that evidently had its effect on every one who was listening to 
his recital . . . [He] did not hesitate for a moment during the entire time he 
was showing his part in the crime, and his frankness of speech and clock- 
like work impressed the officers that he was at last telling the exact truth. 

With Chief Beavers declaring there was no need for further questioning 
and Hugh Dorsey announcing that the state would hold Jim as a material 
witness, the drama was over. Accordingly, Conley was remanded to the 
Tower. There he was expected to remain until it came time for him to testify. 



EIGHT 



A Tramp Alumnus 



n; 



p ot since Uncle Remus had a black man's story so enthralled 
Atlanta. On street corners throughout the city, newsboys hawking 
Friday's afternoon editions cried, conley lays bare phagan 
crime, and outside the Tower, congregations of the curious gathered just to 
be near the remarkable Negro. At some point early in the evening, an 
unlikely couple wended their way through these onlookers. Lorena Jones, 
Jim Conley's common-law wife, was bringing a young white lawyer named 
William Smith to meet her husband. 

On the surface, there was nothing peculiar about the visit. Despite the 
fact that Conley's account of little Mary's murder had won widespread 
acceptance, he still needed legal counsel. The violent slaying of a virginal 
Georgia girl was not the sort of outrage a shiftless black man generally suc- 
ceeded in attributing to a college-educated white man in a Southern court- 
room. 

Yet the true sponsors of this get-together were not especially concerned 
with Conley's fate. Several days earlier, an Atlanta Georgian editor had 
approached William Smith and offered to pay his fee if he could secure the 
state's star witness as a client. Despite the potential for divided loyalties, 
such third-party arrangements were not at the time unusual, and the lawyer 
had agreed to the proposal. Shortly thereafter, he and Lorena, who was also 
in cahoots with the Hearst forces (Conley's wife had served as one of the 
newspaper's emissaries to Smith), were standing in Jim's cell. 

The pair found Conley in good spirits. Indeed, he was downright giddy 
with relief. In the hours since concluding his tour of the factory, he had been 
holding forth to an endless stream of gawkers and reporters, dazzling them 
with fact and philosophy. Rather bitterly, he'd described his alleged partner- 
in-crime's stinginess: "Mr. Frank, he ain't paid me nuthin' yet, like he prom- 
ised to do, and the only thing I got out of it was that two dollars he gave me 
in the cigarette box." But then, lest he sound motivated by anything other 
than noble purposes, he'd added: "I done told the truth 'fore God and high 
Heaven. If He was to tell me this very minute that He was going to hit me 
with a streak of lightning if I didn't tell the straight of it, I couldn't say a 



I46 AND THE DEAD SHALL RISE 

thing on earth 'cept what's in that affidavit." The larger Jim's audience, the 
more garrulous he seemed to grow. 

While William Smith was as captivated by Conley's declarations as the 
next man, his overwhelming reaction was one of alarm. From his perspec- 
tive, the Negro's indiscriminate jawings not only jeopardized whatever 
schemes were afoot in the Georgian newsroom; worse, they opened him up 
to people who cared even less about his well-being than Hearst's vultures. 
As far as the lawyer could determine, the crowd auditing Jim's remarks 
included jailhouse sharpies willing to twist his words for a quick profit, and 
friends of Leo Frank hoping to entrap him into making incriminating state- 
ments. 

Little wonder, then, that Smith, "after receiving from Conley ratification 
of my employment," spent the rest of this initial session urging his new 
client to keep his mouth shut. "Practically my entire communication at that 
time," the lawyer would subsequently recollect, "was relative to a policy of 
silence I advised he should adopt." 

Conley, however, was in no mood to take such suggestions to heart. The 
very next morning, he conducted what amounted to a jailhouse levee for 
the Journal's Harold Ross and Harllee Branch, offering up another round 
of beguiling clues and reflections— this time from a cozy perch on his bunk. 
"The girl must have been dead for about 15 minutes when I saw her for 
when I lifted her body to push the crocus bagging under it I took hold of her 
forearm and it was cold," he told the reporters. "Her hat, one slipper, a piece 
of ribbon and her parasol lay several feet away. I never did see any purse." 
Then, striking a comfortably resigned note, Conley added: "When the judge 
calls me up before him I am going to ask him not to ask me any questions, 
but to simply sentence me. If it's to hang, I'll stick to my story, and if it's life 
imprisonment, there'll be no change." Mesmerized by his sudden notoriety, 
Jim quite simply could not stop talking. 

On Saturday afternoon, William Smith, Hugh Dorsey and Newport Lan- 
ford met in the solicitor's office to discuss what had become a mutual prob- 
lem. Like Conley's lawyer, the authorities were disturbed by Jim's volubility, 
but for a different reason. To them, his pronouncements posed a threat 
to the case against Leo Frank. Considering the number of times the Negro 
had already contradicted himself, there was ample possibility that he might 
offer up an entirely new tale. And even if he didn't change tunes, he was 
almost certain to reveal information the prosecution hoped to save for the 
trial. 

After several hours of deliberation, the men emerged with a solution to 
their dilemma. Conley would be transferred from his laxly guarded quar- 
ters in the Tower back to the constantly monitored headquarters lockup. 



A TRAMP ALUMNUS 147 

There, access would be restricted, in Smith's words, "to only such officials as 
were approved by me." Dorsey, who was familiar with the Georgian's stake 
in all this, felt comfortable with the arrangement. Smith was a friend, and a 
friend who happened to represent both the prosecution's principal witness 
and the Hearst newspaper deserved consideration. 

Despite its patent irregularity— the county jail, after all, was the legal 
and proper lodging place for state prisoners— the decision to remove Con- 
ley to the station house elicited few protests. In part, the lack of response 
was due to ignorance in the newsrooms of the Journal and Constitution as 
to the Georgian's role in the matter. Then there was the not inconsequential 
reality that on the day the transfer was made, Luther Rosser was still out of 
town representing the Georgia Railway and Electric Company in its fight 
to open the Tallulah Gorge generating project. 

During the next week, however, one man began to despair over the part 
he had played in these machinations— William Smith. Conley's lawyer did 
not regret the fact that he had helped place Jim out of harm's way. As he'd 
subsequently tell the press: "I did this in a sincere effort to protect Conley 
from the perjury of his fellows and in an effort to have him given a square 
deal." Rather, he rued forming the alliance that brought him into the affair 
in the first place, belatedly realizing that the Georgian's emerging pro- 
Frank stance could only mean that its editors wished Conley no good. In 
unpublished autobiographical notes written years later, the lawyer, while 
not elucidating all the dynamics, would acknowledge that he'd misjudged 
Hearst's intentions: "In a very short time, I became convinced that the 
major interest of the newspaper was to obtain all possible information 
about the murder or any facts in relation thereto. I became equally con- 
vinced that premature publicity of any possible defensive matter might be 
injurious to Conley's interests." 

Why Smith ever allowed himself to swallow the notion that the Geor- 
gian's purposes could have been otherwise was a subject he never suffi- 
ciently addressed, but ambition played its part. Like nearly every lawyer in 
Atlanta, he wanted to insinuate himself into the Phagan case, and the news- 
paper granted him entree. Yet it really wasn't that simple, for Smith was not 
by nature an opportunist. He was, in fact, an idealist of the sort who had dif- 
ficulty attributing to others motives less high-minded than his own. 

William Smith had been guilty of both self-interest and self-deception, 
but once he confronted his mistakes, he quickly extricated himself from the 
moral quicksand. Sometime during the first week of June, he appeared in 
the Georgian's Alabama Street newsroom. There, in a meeting with the 
paper's editors, he stated that it would be impossible for him to furnish 
them with any information about Conley's defense. The financial ramifica- 



I48 AND THE DEAD SHALL RISE 

tions of this sudden about-face were apparently significant. "I sacrificed the 
compensation I was to receive from interests worth millions," the lawyer 
subsequently told a reporter. Yet he did not regret the decision, for it freed 
him to pursue a higher calling. 

Almost from the instant he met Jim Conley, Smith had felt duty-bound 
to stand by the "penniless and friendless" black man. For one thing, Leo 
Frank had already made the grounds of the impending legal battle clear. 
"No white man killed Mary Phagan," the factory superintendent had 
reportedly told a prison attache upon hearing of Conley's affidavits. "It's a 
negro crime, through and through." The Negro to whom Frank was refer- 
ring was, of course, poor Jim, and as Smith later phrased it, the accused was 
going to use every bit of his "great influence and unlimited financial means" 
to bring the point home to a jury. 

Yet Smith's resolve was galvanized by more than outrage at Frank's 
wherewithal. The simple but profound fact of the matter was that he 
believed Conley was telling the truth. As the lawyer would subsequently 
write, he "shared the view of the prosecuting attorney, which was that Mr. 
Frank was guilty of the crime as the sole principal." 

Accordingly, Smith aligned himself with Hugh Dorsey. Later, he would 
remember: "My justification for this course was based upon my own belief 
that in aiding the State to secure [Frank's] conviction, I was directly serving 
the interests of Conley, my own client." William Smith had decided that 
the surest way of saving Jim Conley's neck was to assist in breaking Leo 
Frank's. 



Few Atlanta lawyers were better suited to the task at hand than 33-year-old 
William Manning Smith. During his eleven years as a member of the city's 
bar, he had developed a reputation as a fierce defender who frequently 
represented underdogs. Initially, circumstances had forced him into this 
role. "I had a very difficult time in the early part of my career," he sub- 
sequently wrote. Smith had scraped for the legal profession's crumbs— 
court-appointed assignments representing the destitute, which in Georgia's 
capital usually meant Negroes. Over time, he had prospered, and his clien- 
tele's pigmentation had lightened. By 1913, most of his clients were white. 
Nevertheless, the fact remained that to many, Smith— though he would 
have abjured the phrase— was a "nigger lawyer." 

In Atlanta's legal hierarchy, nigger lawyers ranked above contempt but 
beneath respect. Tliey had more in common with the geegaw peddlers and 
insurance salesmen who trod darktown's dusty paths than with the advo- 
cates who jousted in the high halls of justice. Not that they didn't fulfill a 



A TRAMP ALUMNUS 149 

necessary function. With fewer than ten black lawyers practicing in the state 
of Georgia, these white attorneys handled nearly all legal transactions 
among Negroes and most legal business between the races. Yet there was 
little prestige in the work. How could there have been when much of it was 
performed in such noisy infernos as Recorder's Court? 

Through the years, Smith had spent a good deal of time in Judge Nash 
Broyles's courtroom. There, he had defended a plethora of Negro ne'er-do- 
wells whose backgrounds were similar to Jim Conley's. Yet his involvement 
with Atlanta's blacks did not stop in the lower realms of legal purgatory, 
was not confined to those arenas where the best one could achieve for 
a client was a reduced sentence in the stockade. While Smith frequently 
represented Negroes, what distinguished him from the others— and what 
would redound so favorably to Jim Conley— was that he was dedicated to 
the race on some deeper level and was willing to champion its members in 
the state's higher courts, in the legislature, and even on the stump. 

In 191 1, representing an elderly Negro woman known in court docu- 
ments only as Rich, Smith took an almost unimaginable step— he sued the 
Georgia Railway and Electric Company for damages to cover injuries his 
client received during a streetcar scuffle between a white conductor and 
a young black man who refused to pay his fare. At the trial, several wit- 
nesses testified that the Rich woman was severely bruised when the con- 
ductor beat and then pushed the unruly passenger down on top of her. 
Though the rail line's counsel disputed these accounts, a jury found that the 
conductor had failed to "exercise that extreme care and caution which a 
prudent man would exercise" and awarded the plaintiff a small financial 
compensation. 

Out of penuriousness or, more likely, in an effort to keep the thousands 
of black Atlantans who regularly rode the trolley cars— since the 1906 race 
riot, a locus of increasing tension— in their place, Georgia Railway and 
Electric refused to settle, appealing the verdict to the state's Supreme 
Court. On June 29, 191 1, that body issued an extraordinary decision: 

We are not unaware of the trying situation in which street-car conduc- 
tors in many of our Southern cities are often placed by the insolent and 
designedly offensive conduct of that lower element of the negro race 
which makes it a point to take advantage of their position as passengers 
to use to street-car employees, while on duty, wanton and insulting lan- 
guage which they would not dare to use under other circumstances . . . We 
know . . . that a bad negro is just about the meanest and most vicious ani- 
mal ever created . . . but as judges, we must lay down rules of law which are 
applicable to all races alike, and it will not do to say . . . that a railway con- 



150 AND THE DEAD SHALL RISE 

ductor can be allowed to imperil the safety of his passengers by his acts of 
violence, provoked, even though most naturally . . . The evidence fully 
authorized the verdict. 

Georgia Railway and Electric Co. v. Rich was not the first case in which 
William Smith had put himself on the line for a Negro. In 1910, he was 
appointed by the court to represent a black man named Roger Merritt who 
had been convicted and sentenced to death for raping a white woman. A 
worse predicament was almost inconceivable, as the victim had identified 
the defendant as her assailant. Yet the presiding judge believed the victim 
was lying and had ordered the case retried, instructing Smith to "handle the 
matter with great care" or "it would mean death for Merritt," which "he did 
not deserve." In the ensuing trial— where the white woman again pointed 
out the black man as her assailant— Smith prevailed. As he later put it, he 
convinced "the jury that there was a reasonable doubt of Roger Merritt's 
guilt." 

For Smith, however, Merritt's acquittal was only half the battle. Though 
his client was free, the lawyer had requested the court to return the Negro 
to the county jail as a place of refuge against the inevitable lynch mob. Then, 
Smith had sought advice from an old and considering the times unlikely 
associate: the Reverend Henry Hugh Proctor, the pastor of Atlanta's First 
Congregational Church and spiritual leader of the city's black elite. 

In all likelihood Smith and Proctor met during the 1906 race riot, where 
each participated in peacekeeping efforts. (The lawyer, a captain with the 
state militia, saw duty when the guard was summoned to restore order, 
while the minister joined a biracial committee to mediate grievances.) By 
1908, the two were working together to defeat a bill before the Georgia leg- 
islature that would have decreased the already negligible sum the state 
allotted its Negro schools. And by the early teens— when Proctor appointed 
Smith to the previously all-black standing committee that served as his con- 
gregation's advisory board— they were friends. 

In the matter of Roger Merritt, these improbable allies decided to pur- 
sue the only course that offered their recently exonerated charge a fighting 
chance against Judge Lynch. After raising the necessary funds, Proctor left 
the plan's implementation to Smith. Working in the dead of night, the 
lawyer, accompanied by the Fulton County sheriff and several deputies, 
escorted Merritt to Terminal Station, arranged rail passage to an out-of- 
state city where the black man could establish a new life, then stood guard 
until the train pulled away. 

William Smith's commitment to Georgia's Negroes arose from more 
than a simple willingness— acquired early on when he was struggling— to 
take cases others refused. He believed that the Southern white man owed 



A TRAMP ALUMNUS 151 

his black brethren a great debt. Smith was, in fact, a zealot on the sub- 
ject, proselytizing not only to the saved but to the unreconstructed, as 
the keynote address he delivered at the 1912 Confederate Memorial Day 
observances in Augusta, Georgia, illustrates. 

Speaking from a podium overlooking Augusta's Magnolia Cemetery— 
the final resting place of thousands of men who had perished defending 
slavery— the lawyer who in just a few short months would be preparing Jim 
Conley to testify against Leo Frank had the temerity to suggest that his gen- 
eration's "chief duty to our honored dead" was to elevate the Negro. With 
that, Smith had proclaimed: 

Out of this war grew the most serious problem that any defeated people 
[have ever been] called upon to face. In my judgement, the ten million 
negroes made through Lincoln's proclamation free, independent, Ameri- 
can citizens are here to stay. The rightful solution to this problem staggers 
the wisdom of our civic students. That it must be solved, no right thinking 
Southerner would question. These ten million negroes forcibly exiled from 
their native homes ignorant and practically helpless are now, under provi- 
dence, wards of the Southland. That we could deal with them other than 
honorably is not to be considered. I have faith in the broadminded, sane, 
and conservative spirit of our people in the handling of this problem and 
believe that [it] will be solved by Southern white men with as heroic a 
devotion to principle as that of their fathers who fought in the cause from 
which the present negro problem had its birth. 

Though Smith stopped short of defining his solution to the racial 
dilemma, he was undoubtedly endorsing a position that was far ahead of its 
time and place. 

Smith's obsession with the black man's dilemma was no passing fancy. 
As early as 1898, when he was a mere college sophomore, he'd discoursed 
on the issue at Atlanta's Intercollegiate Oratorical Contest, for years one 
of the signal events in the lives of Georgia's stripling statesmen. Attended 
by thousands of vocal partisans and accorded reams of newspaper coverage, 
the annual competition drew entrants from the state's principal colleges— 
the University of Georgia; Georgia Tech; Mercer University in Macon; and 
North Georgia College, a military school nestled in the mountain town of 
Dahlonega.To the victor went the John Temple Graves medal— a gold coin 
engraved with the state seal and named for the Georgian's founder, the 
contest's patron— and a tacit invitation to enter politics. 

Considering the stakes, it's hardly surprising that the debaters usually 
elucidated some position upon which everyone in the state already agreed. 
Nevertheless, William Smith— clad in the dress grays of his alma mater, 



152 AND THE DEAD SHALL RISE 

North Georgia— stepped onto the stage of the ornate DeGive's Opera 
House, took in the vast throng of lusty-lunged fraternity lads, pretty girls 
wearing the school colors of their favorites and sundry political horseflesh 
appraisers and began to address "The Negro Problem." 

The text of young Smith's declamation is long lost. (In later years, the 
lawyer summarized the speech as a "plea to the college men and women of 
Georgia for a fair and just deal for the 'Brother in Black.' ") Also lost is any 
account of how the address compared to that given by the eventual winner, 
a Mercer student who confined his thoughts to "The South's Contribution 
to the American Republic." There is, however, a surviving review. It comes 
from the office of future Howard University president Wilbur P. Thurkield, 
at the time chancellor of Atlanta's Gammon Theological Seminary, an insti- 
tution for the training of Negro ministers. Wrote the educator: Smith's dis- 
course "was not tarnished by those vilifying flings which orators both young 
and old are wont to make." 

At the turn of the century, rare was the Southern Cicero who could resist 
racism's crowd-pleasing appeal. Over in South Carolina, Senator "Pitch- 
fork" Ben Tillman got 'em going by vowing that Negroes were "akin to the 
monkey." Meanwhile, in Mississippi, Senator James Vardaman played to the 
house by asserting: "Educate the negro, and you spoil a good field hand and 
make an insolent cook." It was no different in Georgia. Yet William Smith, 
even at the impressionable age of eighteen, even on an occasion crucial to 
his dreams, refused to join the chorus. Worse, he purposely sang off-key 
("Brother in black?" "A fair and just deal?"). By the time, fifteen years 
later, when he took on Jim Conley as his client, Smith had grown even more 
impassioned regarding the Negro cause. This, despite the fact that in every 
other discernible way, he was as typical a Southerner as ever mixed grits 
with gravy. 



To anyone who'd met William Smith on the streets of Atlanta in 1913, 
sounded him out on his work, political connections and career aspirations, 
then visited with him, his wife and his children, the conclusion would have 
quickly dawned that here was the Southern beau ideal in midcareer. 

For openers, Smith comported himself as an officer and a gentleman, and 
even when clad in a business suit, he exuded a martial air. He strode 
through life chest out, stomach in, hat cocked over his brow. Though slen- 
der and of only medium height, he seemed imposing beyond his size. 
Possessed of bright blue eyes and a cannonading voice, he commanded 
attention. Yet for all that, one could not say that Smith was a bellicose sort, 
for in the best Sir Walter Scott style, he tempered his pugnacity with gal- 



A TRAMP ALUMNUS 153 

lantry, graciousness and grandiloquence. The man could ladle on the lan- 
guage, perfuming conversations with bits of Tennyson, inquiring after your 
daddy, praising anything Dixiefied from cotton bolls to watermelons. 

Then there was the fact that while Smith may well have started out at the 
bottom of the legal profession, he'd eventually become a partner in the firm 
of Chambers, Daley and Smith, where he was expected to do much more 
than defend Negroes pro bono publico. The idealistic lawyer spent much of 
his time litigating prosaic criminal and civil cases. In 1907, he'd lost a nasty 
battle to remove the executor of a contested will. Also in 1907, he'd pre- 
vailed in a fight over a $75 real estate commission. In 1909, he'd success- 
fully petitioned Georgia's Supreme Court to overturn a decision that had 
allowed a sheriff to seize a team of mules from an indebted party, auction 
the animals, then use the proceeds to pay the claimant. And in 191 0— 
proving that, like most lawyers, he wasn't above exploiting a technicality in 
defense of a client— he'd managed to get complaints against a check forger 
thrown out of court by arguing that the defendant had been indicted under 
the general, as opposed to the specific, statute covering the offense. 

Chambers, Daley and Smith was concerned with more than just liti- 
gation. The senior partner— mustachioed, orotund Aldine Chambers, an 
Atlanta city councilman— was building a machine designed to elevate 
himself to the city's mayoralty, and he spent most of his energies backing 
candidates who might one day help him. Meanwhile, Walter Daley would 
eventually be elected president of the Atlanta school board. A readiness to 
work the hustings was a job requirement at the firm, which suited the junior 
partner just fine. 

William Smith aspired to office himself, in particular the one that until 
1910 had been occupied by Charles Hill. Like many other Atlantans, Smith 
had revered the late solicitor general, and he had sought to emulate him. As 
he would later write: 

It was then my ambition to eventually become the Solicitor General or 
prosecuting attorney. This position was then filled and had been filled for 
many years, by Mr. Charles D. Hill. Solicitor General Hill was a remark- 
able advocate, an intensely human man, having all the virtues of a great 
soul and yet not free from many of the foibles of life. Mr. Hill knew, from 
his own experience, the weaknesses of man and woman. He was a great 
prosecutor, not only because he was a great lawyer, but because he was a 
great soul. I hoped that when Mr. Hill yielded the Solicitor Generalship, 
that I might fall heir to it and that I might have the privilege of trying to be 
as great a prosecutor as Mr. Hill had been, not only in his deeds, but in his 
broad and kindly dealing with his fellow men who were in trouble. 



154 AND THE DEAD SHALL RISE 

Whatever Aldine Chambers made of Smith's desires and the lofty senti- 
ments that animated them, he did not discourage the young lawyer. To a 
foxy old pol like Chambers, a well-intentioned, golden-tongued scrapper 
was exactly the sort one wanted on the stump promoting one's own affairs 
and those of one's cronies. 

By 1913, Smith had played key roles in two of the era's fiercest cam- 
paigns. The first was Atlanta's 1908 mayoral race. Initially, this contest 
had promised little out of the ordinary. In the fall Democratic primary, the 
right bibulous Jimmy Woodward had once again captured a majority. But 
between the casting of the Democrats' votes and the usually pro forma 
general election, Woodward had gone on another bender. The morning 
after, he had admitted his transgression (although he claimed he'd imbibed 
for medicinal purposes only) and begged forgiveness. The electorate, how- 
ever, would not be kind. At a meeting of 25 leading Atlantans, the million- 
aire banker Robert F. Maddox was drafted to run against Woodward. 
Which was where Smith came marching in. 

William Smith's military bearing was no affectation. Not only was he a 
graduate of North Georgia (where he'd been cadet major) and an officer in 
the state militia, but he was also president of a battalion of civic-minded, 
Sousaesque sorts who'd dubbed themselves the Young Men's Marching 
Club. As the name suggests, these gumptious gents liked to march, usually 
on such occasions as Independence Day, but in the aftermath of Wood- 
ward's spree, Smith vowed that he and his troops were going to march 
Maddox into city hall. 

On the evening of November 28, 1908— four days before the general 
election— William Smith's torchlight parade in support of Maddox snaked 
its way through the streets of downtown Atlanta. Estimates as to the num- 
ber of participants varied (the young lawyer ordered 10,000 torches for the 
occasion), but whatever the total, the procession was so long it took twenty 
minutes to pass any given point on the route. The Journal called it "one of 
the biggest public demonstrations, political or otherwise" in many years, 
adding descriptively: 

From an eminence the procession looked like a long river of molten 
metal flowing through the streets. Incidental to its main purpose— that of 
enthusiastic endorsement of Mr. Maddox for mayor— the procession was 
one of the prettiest night displays that the city has ever seen. 

At the head of that molten river was Smith, and on December 2, when 
Maddox defeated Woodward by 4,000 votes, the up-and-coming lawyer 
received considerable credit. 



A TRAMP ALUMNUS 155 

An auspicious political baptism— and one that boded well for Aldine 
Chambers, who was reelected to the city council in the Maddox landslide. 
In 19 10, however, Smith had plunged into deeper waters: the Georgia 
gubernatorial race pitting Journal founder Hoke Smith against incumbent 
Joseph Brown. The enmity between Smith and Brown was long-standing. 
(In 1908, Brown had defeated the then incumbent Smith in a campaign 
fought on the slogan "Hoke and Hunger, Brown and Bread.") And what 
gave their ill will an added toxicity was that surrogates broadcast it across 
Georgia. Joe Brown was many things, but one thing he was not was a 
speaker. Hence he dispatched an army of articulate seconds to stand up for 
him throughout the state. Though Hoke Smith thrived before audiences, he 
could not be everywhere at once and employed a competing speakers' 
bureau, one of whose number in 1 910 was an Atlanta lawyer who happened 
to share the same surname. 

Young William was no relation to old Hoke, but he stumped up and 
down Georgia for his man. And out there in the little crossroads towns at 
the forums and barbecues where the war was waged, he often found himself 
in verbal battle with one of Joe Brown's soldiers who, like himself, was an 
ambitious Atlanta lawyer: Hugh Dorsey. 

The campaign-trail sparrings between Smith and Dorsey hardly rivaled 
the Lincoln-Douglas debates; nevertheless, they would change both mens' 
lives. Most immediately, they made Dorsey's career and scuttled Smith's 
dreams, for as it so happened, Joe Brown whipped Hoke Smith by some 
60,000 votes, and a few months later, when Charles Hill died, a grateful 
Brown rewarded his surrogate by appointing him solicitor general of Ful- 
ton County. (Whether Smith ever possessed a chance of attaining this office 
is, considering his impolitic views on race, doubtful, although in 1909, he'd 
assisted Hill in the successful prosecution of a particularly loathsome mur- 
derer and had been written up in the newspapers as a qualified candidate.) 
Smith and Dorsey's 19 10 clashes also produced a less predictable result— 
the combatants formed a backstage friendship that would influence the 
course of events three years later. 



Away from the campaign trail, Smith was an avid joiner who knew most of 
the secret handshakes and attended many of the rituals of Atlanta's frater- 
nal organizations. Worshipful master of the city's Masonic Lodge #96, 
chancellor commander of the Knights of Pythias and royal vizier of the 
Knights of Khorassan, the young lawyer was forming associations with men 
from every walk of life. 

Then there was Smith's relationship with his wife and children. The 



I56 AND THE DEAD SHALL RISE 

lawyer had met Mary Lou Baker in 1903 on a double date arranged by a 
mutual friend, an outing that had actually paired Mary Lou with the friend 
and Smith with the friend's sister. By evening's end, it was obvious where 
true affections resided. Within days Smith was pursuing Mary Lou, within 
weeks they were engaged. The couple wed on December 20, 1905, in the 
palm-frond-strewn sanctuary of Atlanta's Park Avenue Methodist Church, 
and soon thereafter boarded a train headed north. Richmond, Washington, 
New York— it was a whirlwind honeymoon, but one moment stood out. At 
the Statue of Liberty, Smith insisted upon kissing his bride on every last 
landing of the seemingly endless metal stairway spiraling to the top of the 
monument. 

Like most Southern men, Smith idealized women. In a flight of college- 
days poetry, he'd rhapsodized about "beautiful Southern queens, dreams of 
loveliness more graceful than any storied nymph." Yet Atlanta-reared Mary 
Lou Baker was no typical belle. While lovely in form— brunette hair that 
glinted red at the tips, high cheekbones, green eyes— she came from rugged 
North Georgia mountain stock and was characteristically strong-willed and 
independent. Someday she hoped to teach English. 

By 1913, the Smiths had two children— six-year-old Mary Lou (after her 
mother) and three-year-old Frank— and they lived on Lucile Avenue in 
Atlanta's smart West End section. Their bungalow took a bow to tradition 
on its front porch, where chairs and a wooden swing bespoke lazy summer 
evenings. Inside, however, the emphasis was decidedly modern: indoor 
plumbing, an up-to-date kitchen and a spacious sleeping porch where the 
entire brood— in keeping with the rage for fresh air that was sweeping the 
nation— could inhale the night breezes. But lest a visitor think he'd entered 
the sanctum of some cosmopolite, the backyard would disabuse him of the 
error, for this well-worn expanse was the exclusive province of two goats, 
Billy and Dan. On Sunday afternoons, Smith hitched carts to the animals, 
summoned trusty Caesar— a massive Saint Bernard-collie mix— and orga- 
nized excursions for his daughter and son that left no doubt as to his red- 
clay origins. 



On the surface, then, William Smith was the archetypal Southern male. Yet 
on a deeper level— where his concern for racial justice arose— there were 
profound differences, and one of the earliest, most dramatic manifestations 
of these differences occured far from his native Georgia. 

On a summer day in 1901, the streets of Quebec, Canada, were lined with 
crowds awaiting the arrival of the duke and duchess of Cornwall— the 
future King George V and Queen Mary of England. Guarding the parade 



A TRAMP ALUMNUS 157 

route was a batallion of red-coated troops, one of whom was a very young 
Smith. 

Smith's temporary position as a private in Her Majesty's 85th Regiment 
had been arranged through the wire-pulling of friends, and it was the high- 
light of an adventure that had begun four months earlier. Originally, he 
and his University of Georgia Law School roommate were going to spend 
two years bicycling around the world, but after graduation the roommate 
changed his mind. Smith, however, was not deterred. With $65 in his wallet 
and a dirk and pistol in his pocket, he'd climbed atop his machine and ped- 
aled away from Athens alone. Existing, as he'd subsequently write, on "half 
rations of an inferior grade, sleeping in jails, box cars, unfinished buildings, 
church door steps, barns, woods and equine hotels," he'd inched northward, 
reaching Washington, then New York City— where for ten days he lived 
under a flight of stairs at Broadway and Fourteenth Street— and finally 
Quebec. 

A crimson uniform, however, was not for Smith. ("If any Southern boy 
has inherited a prejudice against the 'stars and stripes,' " he'd later recall, 
"he should visit some alien land, and be thrilled through at the sight of his 
country's flag.") After performing a few more ceremonial duties connected 
with the royal visit, he resumed his peregrinations. From Montreal, he 
shipped as a deckhand on the steamboat Hamilton to Toronto. Then he 
bicycled to Niagara Falls. Following an unintentionally long stop at the 
International Bridge (several days earlier, President William McKinley had 
been shot in nearby Buffalo at the Pan-American Exposition, and although 
his assassin had been arrested, border crossings were prohibited for a time), 
Smith proceeded to Buffalo. There, he took a "cheap trip" through the 
exposition. Then he departed for points west, working his way across the 
Great Lakes to Chicago on the E. P. Wilbur, a four-stick freighter. 

With winter clamping down, Smith turned south, but he was in no hurry 
to reach home. Earning money by shoveling coal or unloading freight, the 
lawyer hoboed through Illinois, Indiana, Kentucky and Mississippi, eventu- 
ally arriving in New Orleans. There, he labored briefly on the docks, but 
after hearing that hefty sums could be made "cutting cane on a sugar plan- 
tation," he left for the Delta. The work, however, was brutal, so it was on to 
Dallas and Mexico. 

Sometime during January or February 1902, Smith returned to Atlanta 
riding the blinds on a fast passenger train. All told, he had been away seven 
months. He was jobless and nearly broke (he'd spent his grubstake, lost his 
pistol, and his bicycle and dirk had been stolen), but he considered the 
expedition a great success. As he'd later put it, he'd "seen something of 
America before settling down," worked side by side with "Chinese, dagoes 



I58 AND THE DEAD SHALL RISE 

and negroes," and "learned a great deal about his fellow Americans in all 
levels and walks of life," especially those "so unfortunate as to have hardly 
more than food, clothes, and shelter." Yet what makes the trip crucial to any 
understanding of Smith and vital to a comprehension of the bond he felt 
with the black race has little to do with experiences gained or sympathies 
broadened. Instead, one must ask why Smith embarked on the journey at 
all, why he truly was— as the editors of the University of Georgia student 
magazine titled the account he wrote of his exploits— "A Tramp Alumnus." 

Smith was only 22 when he lit out for the territories, but already he bore 
the markings of, if not a future governor, then at least a man destined for a 
more auspicious start in life than a law practice dedicated to defending 
poor Negroes. 

It was at the state university in Athens— where he had enrolled upon 
graduating from North Georgia— that Smith had made the sort of noises 
that suggested he was a comer. First, he'd joined a fraternity, Sigma Nu, 
that, while not as tied to the capitol as such rookeries as Sigma Alpha 
Epsilon and Kappa Alpha, included in its 1902 pledge class the lank-locked 
boy from Sugar Creek, Georgia, who would dominate state politics for the 
next fifty years: Eugene Talmadge. Of greater significance, though, was the 
fact that Smith, building on what he'd accomplished at North Georgia, had 
quickly risen to the top of the school's preeminent debating society. 

To be a champion rhetorician at the University of Georgia at the turn of 
the century was to hold nearly as exalted a position on campus as did the 
quarterback of the Bulldog football eleven. Week after week, the student 
newspaper, The Red and Black, featured the exploits of the college's verbal 
warriors, whether in competition among themselves or with teams from 
other schools, on its front page. The principal clubs— Phi Kappa and Demos- 
thenian— faced each other from opposite sides of the campus's main quad- 
rangle in seeming equipoise, but while each had its merits, Demosthenian 
had by far the more storied pedigree. In its federalist-period temple dur- 
ing the years before seccession, such legendary figures as Robert Toombs, 
the firebrand who in 1861 had announced Georgia's intention to leave the 
Union by shouting from the United States Senate floor, "Georgia is on the 
war path! We are as ready to fight now as we ever shall be," had honed their 
rhetorical skills. By the time Smith joined in 1900, Demosthenian's mem- 
bers were no longer arguing the need to expand slave territory and were 
instead hashing out such contemporary issues as "Resolved that the Inter- 
ference with Strikes by Judicial Injunction Is a Menace to the Liberties of 
the Working Class." Still, Demosthenian was a shrine to the Old Order, and 
as the society's "senior orator," Smith was not only its star speaker but the 
carrier of the flame. 

Just how utterly William Smith had surmounted this fabled Southern 



A TRAMP ALUMNUS 159 

institution— and how secure his future must have seemed— had been made 
abundantly clear on February 19, 1901, when he'd taken his place in the pul- 
pit of the university chapel and facing a packed house that included not 
only the entire faculty and student body but the girls of the Lucy Cobb 
Institute, delivered one of the school year's most anticipated orations: 
Demosthenian's centennial anniversary address. Stylishly outfitted for the 
occasion in tux and tails, young Smith had for once told an audience what it 
wanted to hear. True, he'd managed to challenge his fellow Demosthenians 
to honor the past by confronting the problems of the present, declaring: 
"The Northern states with their better educational facilities have out- 
stripped us in the race for prosperity. Should treasures be poured into our 
coffers, we could aid in the work of educating the sons and daughters of our 
State." But first and foremost, he'd paid homage to tradition. Robert E. Lee, 
Toombs, the valiant Demosthenians who'd died for the lost cause— all 
received bouquets. Furthermore, Smith had indulged in a little atypical 
race baiting. Touching on the scientific wonders that the twentieth century, 
Demosthenian's second century, would witness, he'd predicted that rocket 
travel to other planets would produce a happy result: "Negroes will be ban- 
ished as far as possible to Neptune [and] the Caucasian will stay upon this 
orb, and the 'Stars and Stripes' will wave over all." In summation, Smith had 
borrowed from Thomas More, likening each of his fellow Demosthenians 
to a "vase in which roses have once been distilled. You may shatter the vase, 
if you will, but the scent of the roses will cling round it still." That scent, of 
course, was the scent of an all-encompassing heritage, of Southern history. 

For a shining moment, then, William Smith had stood atop the edifice of 
the Old South, and by his lights, he should have found a starting place for 
himself in the ranks of the state's legal aristocracy. Perhaps an advanta- 
geous judicial clerkship would have been in order, or maybe a position with 
a venerable Atlanta or Augusta firm. But in the end, Smith— son of Dixie 
though he was— was never going to be embraced by the bar's elite, for while 
he may have bestrode the symbol of the ancien regime, he had not emerged 
from its dusty reality, nor could he have, for quite literally, he had no family. 

By the time William Smith had entered law school, he was alone in the 
world. His father, William Sr.— a salesman for an Augusta, Georgia, brick 
manufacturer— had died in 1889. A few years later, in 1896, Smith's mother, 
Dora, followed her husband to the grave. This left just Bill— then sixteen— 
and his older sister, also named Dora, then eighteen. Drawing on a small 
inheritance, the two had moved to mountainous Dahlonega, where they'd 
settled in a rambling boardinghouse owned by a colorful local, one Aunt 
Barney. The dream was that brother and sister would attend North Geor- 
gia, and in the spring of 1897, they'd begun classes. But this attempt to cre- 
ate a semblance of normality was soon dashed, for it was also in 1897 that 



l60 AND THE DEAD SHALL RISE 

Dora contracted chorea, a debilitating nervous disorder. On August 24, fol- 
lowing a nasty fall, she died in her brother's arms. 

How William Smith endured these losses can only be imagined, for while 
he'd later write perceptively about other painful subjects, he never touched 
on this period. Possibly, his childhood had prepared him for such trials, for 
his father may have been the sort of profligate who leaves a son no choice 
but to grow up fast. At the elder Smith's funeral in 1889, the Reverend 
Lansing Burrows, pastor of Augusta's First Baptist Church, had intriguingly 
remarked: "Of late the cares and pressures of business had dulled his youth- 
ful experience of grace [but] God visited him about four years ago and he 
returned to his place beneath the throne." If Smith Sr. fell from grace in the 
usual way, if he was an improvident tippler, then one can speculate that 
Smith Jr., who eschewed drink, had been fending for himself a long time. 
Another clue to the young man's resolve might be found in the ringingly 
titled address he gave in Atlanta in 1900 when he again represented North 
Georgia at the Southern Oratorical Contest: "The Triumph of Individual- 
ism." But however Smith managed it, this much is certain: He not only sur- 
vived, he flourished. Yet as he ascended to the pinnacle of college-boy 
success, he found that his deprivations had transformed him into what for 
the era was a rarity below the Mason-Dixon Line: a young man unbound. 

In 1900, the white South— as it still would be on the day Mary Phagan 
was found murdered— was rigidly divided into two classes, both based on 
family. You could be a patrician, or you could be a cracker. What you could 
not be was neither, for while there was some transmigration between these 
spheres, so powerful were their respective social, cultural and financial 
gravitational fields that few people fell between them, and even those who 
did eventually allied with one or the other. The appearance, then, of an 
independent being hurtling into adulthood without parents, connections 
or money, was seen if not as a threat to the established order then at the 
least as the equivalent of an unnamed and hence worrisome comet arcing 
through the heavens. Thus when William Smith, even though he'd left the 
university trailing clouds of glory, returned from his wanderings, he discov- 
ered that the doors to the state's legal establishment were closed to him. As 
he would later write: 

Upon arriving at Atlanta, I made application to a number of prominent 
law firms. Failing in securing an opening in any law office as I was practi- 
cally a stranger I decided to open my own law office and did so. No matter 
how difficult the way, I determined to go forward. 

And so William Smith hung out his shingle and started looking for 
clients, and while he never put it in so many words, as he surveyed the 



A TRAMP ALUMNUS l6l 

bumptious turn-of-the-century capital of the New South, he saw thousands 
of Negro freedmen— at the time, only 39 years removed from bondage. The 
gulf between this young lawyer— this white freedman— and these blacks 
was vast, yet not so vast that gazing across it, each could not perceive a kin- 
dred spirit. It was in that instant of recognition that the path to Jim Conley 's 
jail cell began. 



NINE 



Skirmishes 



Just days after Jim Conley signed his final affidavit, a series of shrieks 
and protestations loud enough to penetrate a closed door exploded 
from Hugh Dorsey's office. The source of these cries was Minola 
McKnight, the 20-year-old black woman who cooked for the Franks 
and the Seligs. Only a few minutes earlier, Minola had been taken into cus- 
tody at the 68 East Georgia Avenue home the families shared and brought 
to the Thrower Building. Though at first blush this frightened creature did 
not seem the sort who could have shed light on the Phagan case, the solici- 
tor had reason to believe that she possessed a critical piece of information— 
the time Leo Frank arrived home for lunch on April 26. 

To Dorsey, the precise minute Frank sat down at the table the afternoon 
of the murder had suddenly become a matter of utmost importance. During 
the past week, the solicitor had determined that if, as Conley insisted, Frank 
began dictating the murder notes at 1:00 p.m., he could not possibly have 
finished the task, rushed upstairs to confer with the laborers Arthur White 
and Harry Denham regarding the status of their work, escorted Mrs. White 
out of the factory and then made a ten-minute trolley trip across town— 
all before 1:20, the hour that not only he but his parents-in-law swore 
he reached home. There was, however, an ostensibly far more objective 
authority yet to be consulted— the dutiful black soul who'd prepared and 
served Frank's meal. 

The interrogation of Minola McKnight was, by all accounts, an ugly spec- 
tacle. According to the Georgian, Dorsey submitted the woman to "the 
severest sort of grilling." In this, he was assisted by Detectives Starnes and 
Campbell. Yet these intimidating white men bothered Minola less than a 
supposedly sympathetic black man who also participated in the session. 
That man was her husband, Albert. It was Albert who'd informed his supe- 
riors at work— who in turn called Dorsey— that his wife had told him Frank 
didn't arrive home until after 1:30 on April 26, and it was now Albert who 
was most unrelenting in the effort to persuade Minola to confirm this ver- 
sion of events. 

But Albert's exertions were to no avail. Despite his entreaties and admo- 



SKIRMISHES 163 

nitions, Minola not only refused to verify her husband's account, she 
accused him of lying to the authorities. The two had recently quarreled, she 
maintained, and Albert had fabricated his tale in an attempt to get back at 
her. From this rock, Minola would not budge. Following several fruitless 
hours, Dorsey ordered her arrest on the charge of suspicion. While the 
prospect of going to jail further upset the cook, it didn't change her mind. 
As she was being booked, she repeatedly shouted to the boys at headquar- 
ters: "I don't know a thing about it." And long into the evening, she kept 
up a defiant chatter out her cell window, proclaiming her innocence and 
Frank's, too. 

A night behind bars apparently failed to soften Minola's resolve, but the 
next afternoon, something did. The process began when Campbell and 
Starnes reappeared and led the prisoner from her cell to a room adjacent to 
the detectives' third-floor bullpen. There, Albert McKnight was again wait- 
ing, this time in the company of a lawyer named George Gordon, and two 
white businessmen— Ernest H. Pickett and Roy L. Craven— each of whom 
had a decided interest in this matter. Noted the Constitution: 

Both men are employees of the Beck & Gregg hardware concern, the head 
of which, L. H. Beck, is foreman of the grand jury which indicted Leo 
Frank. Significance is attached to this connection of the jury's foreman. 
The veil of mystery is lifted [further] by the fact that Albert McKnight, hus- 
band of the imprisoned servant, is also a porter at the Beck & Gregg estab- 
lishment. 

In other words, Albert worked for Pickett and Craven, who in turn worked 
for a man without whose cooperation Dorsey could not have secured an 
indictment against Frank. It was all very cozy, so much so that after Attor- 
ney Gordon obligingly retired to a hallway, the detectives surrendered 
Minola to the Beck & Gregg contingent's care, not returning until a couple 
hours later, at which point, following a brief conversation with the woman, 
Starnes produced pen and paper, then summoned a familiar figure — 
departmental secretary C. Gay February. Shortly thereafter, Minola gave 
her statement, whereupon she was freed. 

Had Hugh Dorsey succeeded in plugging the leaks that had plagued the 
state since day one, the contents of the piece of paper to which Minola's 
name was now affixed might not have been revealed until the trial. In fact, 
soon after the affidavit was obtained, the solicitor told the Constitution: "I 
will not talk regarding the McKnight woman. Too much publicity at this 
stage will do inestimable injury." The higher-ups at 175 Decatur Street did 
not, however, share Dorsey's reticence. Quite to the contrary, Newport 



164 AND THE DEAD SHALL RISE 

Lanford was so eager to publicize the coup that he instructed a typist to 
pound out carbons of Minola's statement for all three newspapers, and 
within hours extras were rolling off the presses. Boomed the Georgian: 

cook's sensational affidavit 

The most sensational aspect of Minola McKnight's statement concerned 
not the time Frank had appeared for lunch on April 26 but the time he'd 
departed. Minola still clung to the family line that the superintendent had 
arrived home at 1:20, but in a devastating revision, she'd added that he'd 
rushed off ten minutes later without touching his food, a direct contradic- 
tion of Frank's testimony at the inquest, where he'd sworn that he'd spent 
half an hour at the house conversing with Lucille and his mother-in-law 
before they left for the opera, dining with his father-in-law, then, once lunch 
was finished and the older man had strolled into the backyard, stretching 
out on the living room sofa for a cigarette and a nap. According to Minola, 
however, the superintendent had done none of these things, had in fact 
quickly made himself scarce. As to why he'd been in such a hurry, the cook 
didn't say, but the clear implication was that he and Jim Conley had unfin- 
ished business back at the factory. 

For all of this, Minola's affidavit would not have prompted the Constitu- 
tion to term it "fully as startling as the recent confession of James Conley," 
had it not been for her other revelations, which involved what purportedly 
transpired in the house at 68 East Georgia Avenue the weekend of the mur- 
der and in the days that followed. 

On the subject of Frank's behavior the night of Saturday, April 26, 
Minola painted a picture tending to confirm the detectives' theory— born 
of Lucille's comment the next morning to John Black regarding the deple- 
tion of the house liquor cabinet— that the superintendent had been drunk: 

Sunday, Miss Lucille said to Mr. Selig that Mr. Frank didn't sleep so 
good Saturday night. She said he . . . wouldn't let her sleep with him, and 
she said she slept on the floor on the rug by the bed because he was drink- 
ing. Miss Lucille said Sunday that Mr. Frank told her Saturday night that 
he was in trouble, that he didn't know the reason why he would murder, 
and he told his wife to get his pistol and let him kill himself. I heard Miss 
Lucille say that to Mrs. Selig. It got away with Mrs. Selig mighty bad. She 
didn't know what to think. 

Then there was the vexing matter of the many days that had passed 
between Frank's arrest and Lucille's return visit to the Tower, a matter that 
Minola said dismayed her, too: 



SKIRMISHES 165 

I don't know why Mrs. Frank didn't come to see her husband, but it 
was a pretty good while before she come to see him, maybe two weeks. 
She . . . said: "Minola, I don't know what I am going to do." 

Finally, Minola alleged that her employers, upon hearing that Hugh 
Dorsey planned to question her, tried to buy her silence: 

When I left home to go to the Solicitor General's office they told me 
to mind how I talked. Up to the time of the murder I was getting $3.50 
a week. But last week she paid me $4, and one week she paid me 
$6.50 . . . One week Mrs. Selig give me $5, but it wasn't for my work. 

They just said, "Here is $5, Minola," but of course I understood what 
they meant even if they didn't tell me anything ... I understood it was a tip 
for me to keep quiet. They would tell me to mind how I talked, and Miss 
Lucille would give me a hat. 

While Dorsey would have preferred the publication of Minola Mc- 
Knight's affidavit to have been delayed, now that it was in print, he at- 
tempted to seize the tactical advantage. In one stroke, he declared, he had 
not only buttressed Conley's story but torn the roof off the Franks' home, 
revealing that Leo's anxiety the morning Mary Phagan's body was discov- 
ered was but the half of it. Moreover, he had teased out another simmering 
issue— Lucille's failure to visit her husband behind bars— and introduced a 
new one: the family's purported attempt to bribe a witness. By all rights, the 
solicitor should have again been able to proclaim victory. Yet he could not. 

Even as the McKnight statement was being splashed across Atlanta's 
front pages, the overwhelming reaction was that Dorsey had overplayed his 
hand. The Georgian, its decision to showcase the story notwithstanding, 
scoffed at the affidavit, cautioning in a subhead: 

Incoherent Statement by Employee of 

Frank Household That Must Not 

Be Taken as Legal Evidence Until 

Heard and Corroborated in Court. 

And the Hearst sheet wasn't alone in its skepticism. Noted the Journal: 
"The affidavit is nearly all hearsay evidence, and therefore inadmissible in 
court." Even more worrisome, added others, was the role Albert McKnight 
and his superiors at Beck & Gregg had played in the drama. Most damag- 
ing, though, was the fact that fewer than twenty-four hours after the state- 
ment appeared, its author repudiated it. 

Following her release from headquarters, Minola had returned to the 



l66 AND THE DEAD SHALL RISE 

tiny shack she and her husband shared several blocks from the Franks' 
house. It was there that a Georgian reporter spoke to her: 

"Did you sign any affidavit in the office of Chief Lanford?" was the first 
question asked of the McKnight woman. 

"No, sir, I never had a pen or pencil in my hand," she replied. 

"Have you read what this affidavit says as it was published in the 
papers?" 

"It was read to me; I can't read." 

"Is there anything in there that you said?" 

"No, sir; it's most all a pack of lies." 

"Where did they get all that stuff, then?" 

"I don't know sir; I don't know." 

When Hearst's man pressed Minola as to why her counsel had allowed the 
investigators to put words in her mouth, she bristled: "I ain't got no lawyer, 
'cept God. He's my lawyer. You jus' put that in the paper. You jus' tell them 
that I ain't got no lawyer, 'cept God." 

Minola's affidavit could not, of course, be made to go away simply 
because she now disavowed it. Furthermore, the authenticity of her recanta- 
tion was undermined by the fact that it appeared in a paper whose propen- 
sity to embellish the truth was well known and whose prodefense leanings 
were continually growing more apparent. Nonetheless, Minola's renuncia- 
tion—which was picked up prominently by the Journal and even grudg- 
ingly acknowledged by the Constitution— called into question both the 
methods detectives had used in obtaining her statement and those they'd 
used in obtaining others, particularly Conley's. For the first time since seiz- 
ing control of the investigation, Dorsey found himself overexposed and 
vulnerable. 



The same day Dorsey ordered Minola McKnight's arrest, Luther Rosser 
refused comment to a Journal reporter trying to divine the defense's pre- 
trial strategy. "Luther Z. Rosser maintains his sphinxlike attitude and 
declines to discuss the theory of the defense," the paper observed. Such 
taciturnity by Frank's counsel— "Luther Z. Rosser maintains his usual 
silence," echoed the next morning's Constitution— had become common- 
place in the month since the inquest concluded. Not only had Rosser said 
nothing to contest the rumors of sexual misconduct swirling around Frank, 
but he'd made no effort to rebut Conley's affidavits. In part, he may simply 
have wanted to avoid repeating the mistake he'd made earlier when by 
speaking out he antagonized the police. Then again, he may have been dis- 



SKIRMISHES 167 

tracted by other business. After all, the week Conley unburdened himself, 
he'd been away in Rabun County helping the Georgia Railway and Electric 
Company push its Tallulah Gorge power project through the courts. In the 
aftermath of the McKnight debacle, however, Rosser found his voice. It 
belonged to his client's wife. 

Lucille Frank's open letter to the citizens of Atlanta ran in all three 
papers the day after the McKnight affidavit appeared. By turns aggrieved, 
exasperated and exhortatory, the letter made it plain that Rosser— who was 
doubtlessly speaking through Lucille— was ready to take the offensive: 

The action of the Solicitor General in arresting and imprisoning our 
family cook because she would not voluntarily make a false statement 
against my innocent husband brings a limit to patience. The wrong is 
not chargeable to a detective acting under the necessity of shielding his 
own reputation against attacks in the newspapers, but of an intelligent, 
trained lawyer whose sworn duty is as much to protect the innocent as to 
punish the guilty. My information is that this Solicitor has admitted that no 
crime is charged against this cook and that he had no legal right to have 
her . . . imprisoned. 

That the Solicitor, sworn to maintain the law, should thus falsely arrest 
one against whom he has no charge and whom he does not even suspect 
and torture her, contrary to the laws, to force her to give evidence tending 
to swear away the life of an innocent man, is beyond belief. 

Where will this end? My husband and my family and myself are the 
innocent sufferers now, but who will be the next to suffer? I suppose the 
witnesses tortured will be confined to the class who are not able to employ 
lawyers to relieve them from the torture in time to prevent their being 
forced to give false affidavits, but the lives sworn away may come from any 
class . . . 

It is not surprising that my cook should sign an affidavit to relieve her- 
self from torture that has been applied to her for four hours ... It would be 
surprising if she would not, under such circumstances, give an affidavit. 

This torturing process can be used to produce testimony to be published 
in the newspapers to prejudice the case of anyone the Solicitor sees fit to 
accuse ... It is hard to believe that practices of this nature will be counte- 
nanced anywhere in the world outside of Russia. 

Lucille's arraignment of Dorsey concluded, her tone softened. After 
denying the charges advanced in Minola's affidavit ("My husband was 
home for lunch and in the evening at the hours he has stated on the day of 
the murder . . . Neither on Saturday nor Saturday night, nor on Sunday, nor 
at any other time, did my husband by word or act . . . demean himself oth- 



l68 AND THE DEAD SHALL RISE 

erwise than as an innocent man"), she described the hardships she'd suf- 
fered since Leo's arrest: 

I have been compelled to endure without fault, either on the part of my 
husband or myself, more than it falls to the lot of most women to bear. 
Slanders have been circulated in the community to the effect that my hus- 
band and myself were not happily married, and every conceivable rumor 
has been put afloat that would do him and me harm. 

Then, in closing, Lucille did something she'd heretofore not done. She 
publicly proclaimed her faith in Leo: 

I know my husband is innocent. No man could make the good husband 
to a woman that he has been to me and be a criminal . . . Being a woman, I 
do not understand the tricks and arts of detectives and prosecuting offi- 
cers, but I do know Leo Frank, and his friends know him, and I know, and 
his friends know, that he is utterly incapable of committing the crime that 
these detectives and this Solicitor are seeking to fasten upon him. 

The most effective thing about Lucille's letter was that it left Dorsey 
almost no room to operate. If he fired back, he ran the risk of appearing to 
badger a long-suffering woman. If he said nothing, he implicitly endorsed 
her allegations. 

Once again, though, Dorsey proved himself to be nimble. Speaking off- 
the-cuff shortly after Lucille's communication was made public, he brushed 
aside the notion that his investigators were pressuring witnesses. "Minola 
McKnight was not 'sweated' while she was in my office, nor was she 
'sweated' anywhere else," he told the Journal "Merely she was confronted 
with her husband." Then, in a formal response released the next day to all 
the papers, the solicitor danced away from the substance of Lucille's 
charges entirely. Coolly, pointedly, he sought to present himself as a disin- 
terested public servant simply carrying out the at times disagreeable tasks 
dictated by his office: 

I have read the statement in the Atlanta newspapers over the signature 
of Mrs. Leo M. Frank, and I have only to say, without in anywise taking 
issue with her premises, as I might, that the wife of a man accused of crime 
would probably be the last person to learn all of the facts establishing his 
guilt, and certainly would be the last person to admit his culpability ... A 
bill of indictment has been found by the Grand Jury, composed of impar- 
tial and respected citizens of this community, and as Solictor General of 
this circuit, charged with the duty of aiding in the enforcement of our 



SKIRMISHES 169 

laws ... I welcome all evidence from any source that will aid an impartial 
jury, under the charge of the court, in determining the guilt or innocence 
of the accused. Perhaps the most unpleasant feature incident to the posi- 
tion of prosecuting attorney arises from the fact that punishment of the 
guilty inevitably brings suffering to relations who are innocent of partici- 
pation in the crime, but who must share the humiliation flowing from its 
exposure. 

This, however, is an evil attendant upon crime, and the courts and their 
officers cannot allow their sympathies for the innocent to retard the vigor- 
ous prosecution of those indicted for the commission of crime, for were it 
otherwise, sentiment, and not justice, would dominate the administration 
of our laws. 

Dorsey wasn't finished. The McKnight episode had also presented him 
with a splendid opportunity to thrust a dagger through the heart of a par- 
ticularly loose-lipped demon— Newport Lanford. The moment Minola's 
affidavit had appeared in print, the solicitor had written the detective chief 
"urging him to take steps to prevent [more] 'leakage.' "Then, following the 
publication of Lucille's letter, he went further, calling on the grand jury to 
investigate 175 Decatur Street. In order to stave off such a probe, Lanford 
quickly caved in, commanding his men, himself presumably included, to 
stop discussing the case with reporters. The Constitution, whose disdain for 
the police hierarchy was only heightened by its pro-prosecution stance, 
applauded, editorializing: 

If the Phagan tragedy shall produce no other result than the recent 
"shut-up" order of the detective department it will not be entirely lacking 
in compensation. 

Yet for all Dorsey's deftness, there can be no doubt that the McKnight 
episode had hurt the state's case, doing for the defense what the defense 
had seemed incapable of doing for itself —creating a platform from which 
Rosser could both cast aspersions on Dorsey's methods while beginning 
the task of reversing a month's worth of bad publicity about Frank. As the 
Georgian's Old Police Reporter put it: "To be strictly truthful, I must say 
that the man in the street believes Leo M. Frank guilty of the murder of 
Mary Phagan but the statement in defense of her husband given out by Mrs. 
Leo Frank had a steadying effect and has cleared the atmosphere consider- 
ably." Hoping to capitalize on the change of climate, Rosser jumped right 
back into the papers with a second open letter from Lucille to the citizens 
of Atlanta. This time, the obvious intention was to nail the solicitor with his 
own words: 



170 AND THE DEAD SHALL RISE 

I think fairness to Mr. Frank requires that the public should clearly 
understand Mr. Dorsey's position as stated by him in his reply to my state- 
ment that he proposes to use testimony which comes from witnesses as the 
result of torture. 

His real position, as gleaned from his card, can be stated in the following 
sentence which he employed: 

"I have only to say without in anywise taking issue with her premises as 
I might . . . that I welcome all evidence from any source that will aid an 
impartial jury, under the charge of the court, in determining the guilt or 
innocence of the accused." 

That is to say, he thinks it unnecessary to waste time in disputing the fact 
that the detectives are procuring testimony from witnesses by torture. He 
considers this point immaterial. He believes he is thoroughly justified in 
using tortured testimony if it is turned over to him, for he says: "I welcome 
all evidence from any source." 

The Journal and the Constitution stated that he had my cook arrested 
and carried to his office and quizzed to such an extent as to drive her into 
hysterics, and that after this he sent her screaming to the police sta- 
tion . . . After she left his office she was taken to the detectives' torture 
chamber, and, according to the Atlanta Constitution, she there had the third 
degree applied to her to the point of exhaustion, after which, she made an 
affidavit, which the detectives . . . gave out to the papers. 

The solicitor had no charge against this cook and did not suspect her of 
any crime. Yet Mr. Dorsey waves this aside as trivial . . . because he says: "I 
welcome all evidence from any source," clearly implying that he will take it 
from the torture chamber if it is offered to him. 

When Mr. Dorsey introduces this third degree evidence to the jury, can 
it be supposed that he will at the same time tell the jury that it comes direct 
from the torture chamber? 

Lucille's new statement made it even harder for Dorsey to elude the 
charge that he was strong-arming witnesses, and it transformed his evasive 
rhetoric into an issue in its own right. All of which may explain why the 
solicitor let the salvo pass and failed to respond to an interview Lucille sub- 
sequently gave to the Georgian's Old Police Reporter in which she reaf- 
firmed her belief in Leo's innocence, praised his character ("He has always 
been the most kind, the most generous, the most thoughtful, the most con- 
siderate, and the most affectionate of men") and pointed proudly to his 
many charitable affiliations. While Lucille did confess that her husband was 
"no saint," the sole failings she could recall were that he smoked cigarettes 
and drank beer— although never to the point of intoxication. Otherwise, 



SKIRMISHES 171 

she said, "He ever has been just the plain, more or less studious and serious 
minded, Leo, gentle and thoughtful, sincere and true. He is my husband, and 
I love him very much." 

Lucille Frank's avowed belief in Leo's moral integrity could not, of 
course, explain away the numerous salacious stories to the contrary or 
expunge the charge against him. Furthermore, as the superintendent's wife 
admitted in her second letter, her comments carried no legal weight: "Mr. 
Dorsey and the detectives know that I cannot go on the witness stand and 
deny the affidavits they have published in the newspapers. Under the law 
a wife will not be permitted to testify either for or against her husband. 
The law puts this absolute seal upon my lips." Still, she had what for now 
amounted to the last word. 



During the early days of June 1913, Luther Rosser basked in the glow of 
accomplishment and acclaim. Quite aside from his successful campaign to 
give Dorsey a taste of his own medicine, the lawyer had finally vanquished 
the hillbilly John Muirs who'd opposed the opening of the Georgia Railway 
and Electric Company's Tallulah Gorge power station. Now the plant's tur- 
bines could generate electricity, industries across the state could expand 
and, not incidentally, wealthy Atlantans could build vacation homes over- 
looking the crystalline lakes that backed up behind the project's dam. God, 
in short, was in Rosser's heaven, and if things developed as he intended, the 
man who posed the most serious threat to Leo Frank would be indicted for 
the murder of Mary Phagan before he could ever utter a word in court. 

Rosser launched his attack on Jim Conley just two days after Lucille 
Frank's last letter appeared in print by issuing yet another statement to the 
newspapers. This time, though, he spoke for himself, and as was his style, he 
made no attempts at diplomacy. The state's star witness was "a very ordi- 
nary, ignorant, brutal negro not unacquainted with the stockade [who] 
began to talk, and negro-like, to talk so as to protect himself." Newport 
Lanford, meanwhile, was if not "insane" then "temporarily out of his head." 
Had the detective chief and his officers "kept open minds seeking only the 
murderer and not seeking to vindicate their opinions, the negro would have 
by this time told the truth." Then there was the process whereby the police 
had secured Conley's affidavits, a process for which the defense counsel 
reserved his deepest scorn: 

Conley made one statement. It did not meet the announced opinions of 
Lanford. He made another. This second was not up to the mark; it did not 
sufficiently show Frank's guilt. Another was made, which was supposed to 



172 AND THE DEAD SHALL RISE 

be nearer the mark. Whereupon there was great rejoicing. Forgetting all 
others, this last statement— reached through great tribulations— was pro- 
claimed the truth, and that there would be no other statement . . . 

But what a statement! So full of contradictions, so evidently made for 
self-protection and wherein was so easily apparent the guiding hand of 
detectives. 

Rosser's intent was not so much to brutalize Conley or ridicule Lanford 
as to persuade the judge who would preside at Frank's trial— 68-year-old 
Leonard Roan, a well-respected jurist who in the 1890s had been Rosser's 
law partner— to order the Negro's transfer from the station house back to 
the Fulton County Tower. As long as the state's star witness remained in 
police custody and thus in the hands of officers with a vested interest in 
securing Frank's conviction, the lawyer argued, the truth would never 
emerge: 

This negro is not to give any other or further statement if the detective 
department can prevent, unless made under their supervision and direc- 
tion. He must, at all times, be under the influence and control of Lanford. 
He must have Lanford's sucking bottle at all times to his lips, sucking Lan- 
ford's views and theories of this case. 

Roan's response to Rosser's sortie was swift and sure. Early the next day, 
he informed Dorsey that he was inclined to return Conley to the Tower. On 
this point, the judge asserted, the law was explicit: The Negro was a material 
witness, and material witnesses belonged in the county facility, where Sher- 
iff Wheeler Mangum was charged with shielding them from anyone— 
detectives included— bent upon influencing their testimony. 

The defense was, of course, elated by the news, for Rosser believed that 
once Conley was freed from what the Georgian termed "police petting," 
he'd revert to form and talk to the press, becoming not only his own worst 
enemy but the prosecution's, too, for inevitably, he would slip and reveal 
what actually happened on April 26, which, by the lawyer's reckoning, was 
this: That Saturday morning, desperate for cash and "made passionately 
insane by liquor," Jim had been lurking in the pencil factory lobby. When he 
spotted Mary Phagan, mesh purse in hand, descending the stairs from 
Frank's office, temptation overcame him. He struck the girl, dropped her 
body into the basement through the elevator shaft, then clambered down 
the scuttle hole ladder. Upon discovering that the child wasn't dead, Conley 
gagged her with strips of cloth ripped from her underskirt, tied her around 
the neck with a length of twine fished from the floor and dragged her to the 
rear of the cellar. There, he strangled her. As to the issue of rape, Rosser 



SKIRMISHES 173 

considered it either inconvenient— its mention could rekindle the charges 
of impropriety swirling around Frank— or irrelevant, as he'd concluded Jim 
had been motivated less by sex than by greed. That is, the lawyer believed 
that Conley's reason for attacking little Mary had been to rob her. Other- 
wise, why had her purse, an item whose $1.20 in contents could hardly have 
interested Frank, disappeared? Finally, there were the murder notes, in 
Rosser's view the unalloyed product of the Negro mind. Only a Negro 
could have concocted a scheme to pin the crime on some other Negro, and 
only a Negro could have imagined that anyone would swallow the notes' 
logic. It was all clear, and Rosser was certain that once Conley was no 
longer being force-fed his lines by Newport Lanford, the grand jury would 
see. This, at least, was how things were supposed to work. 



Shortly after Roan expressed his inclination to transfer Conley to the Tower, 
Hugh Dorsey— joined by William Smith— appeared in Judge Roan's cham- 
bers and filed a petition meant to derail the defense lawyer's plans. Yet 
exactly what the solicitor had in mind was hard to comprehend, for his peti- 
tion was peculiar. He argued neither against Conley's return to the county 
facility nor for his continued incarceration at headquarters. Instead, he 
asserted that Jim was not a material witness and should be released from 
custody altogether. 

Rather than grant or deny Dorsey's strange request, Roan set a hearing 
on the matter for two days hence. 

During the brief interim, the logic behind Dorsey's move became appar- 
ent. He still regarded Conley as a material witness, yet he realized that if the 
Negro retained that status, Roan had no legal alternative but to remand 
him to the Tower. To avoid such an outcome, the solictor intended to engi- 
neer Conley's release, then rearrest him as a suspect— though he suspected 
him of nothing— and hold him at headquarters indefinitely. And the beauty 
of it was, Rosser couldn't do a thing about it. Should Frank's lawyer fight 
the petition on its merits, he would find himself arguing that the Negro 
should be held to testify against his client. If he contested the final plan, he 
would be forced to maintain that the Negro was not a suspect. 

Dorsey's petition had checkmated the mighty Rosser. Still, both sides 
had to go through the charade of Roan's hearing and accordingly, a small 
army of lawyers and reporters convened in his chambers at 10:00 a.m. on 
Friday, June 13. Though the solicitor's position didn't need bolstering, 
William Smith nevertheless produced an affidavit from Conley in which the 
Negro asserted that threats had been made against him during his brief stay 
in the Tower. Smith also tendered a statement of his own maintaining 
that the county lockup was often protected by only a single guard and was 



174 AND THE DEAD SHALL RISE 

therefore accessible to anyone intent on harming his client. Meanwhile, 
Rosser submitted a statement to Roan as well, but the defense lawyer 
appeared resigned to the inevitable. In fact, he termed his communication a 
"protest," acknowledging that he was running up the white flag even as he 
denounced Dorsey's petition as a "farce meant to continue the present ille- 
gal confinement," accused the state of "winking" at justice, archly congratu- 
lated Smith for his "wise" decision to abandon Conley to the prosecution's 
whims, then raked Newport Lanford over the by now familiar coals: 

That the detectives should wish to keep Conley in custody and enter- 
tain him at the city's expense is not at all surprising. They have already 
extracted from him extravagant, unthinkable confessions, three or four in 
number. To these statements they have given the widest publicity, and to 
the credibility of the last one they have staked their reputations and hope 
of place 

Can any fair-minded man believe that Lanford is a fair man to be the 
custodian of this ignorant negro? What chance would he have to retract 
any lie he may have told, or if in a repentant mood he should wish to tell 
the truth? This negro in the city prison, in the power of Lanford, apart from 
all questions of truth, would be just as dangerous as Lanford would wish 
him to be. No one knows that better than Lanford, and no one would feel it 
as acutely as will this negro. 

For six indignant pages, Rosser carried on this way, yet in the end, his obser- 
vations had no bearing on Roan's thinking. Neither, for that matter, did 
Smith's. In fact, without reading either man's submission, the judge asked 
the lawyers if any of them considered Jim Conley to be a material witness. 
Though Dorsey considered him to be exactly that, he said nothing. As for 
Rosser, he, too, kept his opinion to himself. With everyone in such seeming 
accord, the judge promptly granted the solicitor's petition. It all took under 
ten minutes. 

Accordingly, at n a.m., Friday, June 13— less than an hour after Roan 
made his decision— Newport Lanford appeared at the door of Conley 's sta- 
tion house cell and announced: "Well, Jim, I am going to release you." 

Though Conley received the news with a bewildered look, he silently 
accompanied the detective chief to the desk sergeant's office. After opening 
the docket book to the Negro's name, Sergeant A. J. Holcombe entered the 
following notation: 

Released, June 13, 1913, by order of Judge L. S. Roan, of the superior court, 
Stone Mountain Circuit. 



SKIRMISHES 175 

This formality observed, Lanford took Conley by the arm and walked him 
through a door opening into an enclosed auto passageway, then up an al- 
ley to Decatur Street. There, as a small crowd watched, the detective chief 
relaxed his grip. Jim was a free man. Yet before the Negro could so much 
as move, Detective J. F. McGill— who "by some peculiar chance," as the 
Journal dryly put it, was stationed on the sidewalk looking for "suspicious 
personages"— rearrested him, whisking him back into headquarters, where 
Holcombe was, of course, waiting with his docket book. Once the new 
charge — "suspicion" — was noted, Lanford returned Conley to his cell, which 
was fine by Jim. "I didn't want to get out anyhow," he told his captor— and 
that, likely as not, was the truth. 

With Conley off-limits, Dorsey was ready for court. He ordered his assis- 
tants to organize the guts of his case— the Negro's affidavits, a chart detail- 
ing the principals' movements on April 26, depositions regarding Frank's 
alleged peccadilloes, chunks of inquest testimony and Dr. Harris's autopsy 
report (which the state had finally received but whose contents would not 
be revealed until trial). He also hired Frank Hooper— an ex-prosecutor 
from Americus, Georgia, who boasted an impressive conviction record— to 
serve as his associate. Things, finally, were falling into place, so much so that 
despite the date now set for the proceedings to begin— June 30— being 
practically upon him, Dorsey decided to take a vacation. After securing a 
promise that the grand jury would resist any defense effort to use his 
absence to engineer Conley's indictment, he began packing. Yet even with 
this contingency covered, the solicitor needed to confer with one last indi- 
vidual before leaving town. 

Saturday, June 14. In just a few minutes, the afternoon train for New 
York would pull out of Atlanta. Up and down the covered sidings that 
extended back from the great Moorish fortress of Terminal Station, passen- 
gers hurried to their cars. In the distance, a smoke-wreathed locomotive 
groaned. Yet standing off to the side, seemingly oblivious to the blur of 
activity and the fast-approaching hour of departure, Hugh Dorsey huddled 
in conversation with William Smith. The two had a critical piece of business 
to discuss. As a matter of course, any lawyer whose client is held more than 
a few days on such nebulous grounds as suspicion will initiate habeas cor- 
pus proceedings. But Smith, in return for the solicitor's pledge— contingent 
on Frank's conviction— to go easy on Conley, agreed to take no such action. 
The Negro would remain in jail. Only after consummating this deal— which 
amounted to an insurance policy on the state's star witness— did Dorsey 
climb aboard. 



I76 AND THE DEAD SHALL RISE 

In the wake of Hugh Dorsey's hornswoggling of Luther Rosser, the aware- 
ness dawned among such Frank supporters as Sig Montag and Herbert 
Haas that the solicitor was a more formidable enemy than had at first been 
imagined. Though this realization didn't prompt second thoughts about 
Rosser— who, after all, was known less for his sleight of hand than for his 
ability to argue a case— it did suggest that it wouldn't hurt to bring in some 
new legal blood. 

If the mighty Rosser was the gladiator Atlanta's wealthy employed to 
smite their foes, Reuben R. Arnold was the envoy they dispatched to 
cement business relationships, diffuse conflict and, generally speaking, lend 
an air of civility to the transactions through which discreet people adjudi- 
cate their differences and secure their fortunes. Grandson of a two-term 
Whig congressman from the Tennessee mountain town of Greeneville and 
son of a Confederate colonel who, following the Civil War, migrated to 
Atlanta and prospered at business and at the bar, Arnold grew up in a world 
of privilege at Deerland, the elegant home his father built on Peachtree 
Street just north of town. After attending the University of Georgia, he 
returned to Atlanta to practice law. 

By the summer of 1913, the 45-year-old Arnold had made his name and 
his fortune as the principal in a firm whose most lucrative client was the 
Atlanta Journal. The lawyer's relationship with the newspaper had its roots 
in his long-standing association with its founder, Georgia's junior United 
States senator, Hoke Smith. Arnold was one of the politician's most trusted 
lieutenants. In fact, the men were so close that in 1910, when Smith took 
sick the day before he was scheduled to announce his candidacy against 
Joseph M. Brown for the state's governorship, Arnold delivered the cam- 
paign kickoff address. 

That Hoke Smith tapped Arnold to make such a speech was no surprise, 
as the lawyer often served as a mouthpiece for his friends and his class. Dur- 
ing the first months of 1913 alone, he'd debated an Anti-Saloon League offi- 
cial bent on seeing Georgia's 1908 prohibition law enforced not just at 
cheap near-beer saloons but at such august watering holes as the Piedmont 
Driving Club; published a statement attacking a provision in the tax laws 
that gave tenant farmers (most of them Negro) power to take deductions 
that landlords (most of them white) opposed; and— sharing the dais with 
Rabbi David Marx— gave the keynote address at the Atlanta Chamber of 
Commerce's annual banquet. 

What made Arnold an effective presence on either the stump or the 
after-dinner podium wasn't so much his speaking ability— although, like 
most Southern lawyers of his generation, he could turn a phrase— but the 
fact that in words and being he articulated the values his social and financial 



SKIRMISHES 177 

peers held most dear: property, prosperity, propriety. One of those men for 
whom the word "solid" was invented, Arnold stood six feet tall with broad 
shoulders and a thick middle and gazed out at an audience through a reas- 
suringly bland face animated by soft blue eyes and topped by short blond 
hair parted on the side and combed over the ear. He was impressive but not 
threatening, handsome but not affected. 

All of this, however, is not to say that Arnold was the sort of counsel who 
served chiefly as window dressing. He was a good book lawyer, the type 
who off the top of his head could dictate, say, the documents necessary to 
place a struggling company into receivership. He was also a superb litigator, 
more dangerous in court than one might at first imagine. As the Constitu- 
tion put it: 

The sting of Reuben Arnold is as sharp as an adder. He's mighty polite 
about it— injects the poison skillfully, without mussing up the patient's 
clothing or causing him any unnecessary loss of blood, but the poison 
works just as surely. He is also some goat getter— a sort of polite purloiner 
of goats, is Reuben. 

Moreover, Arnold possessed an expertise in medical evidence that could 
prove of value in a trial where the interpretation of autopsy reports might 
determine guilt or innocence. 

Still, Mister Rube, as he was deferentially known, was better suited to 
winning over a jury than pummeling a witness, more skilled at building up a 
misunderstood client than attacking the state. He was the perfect comple- 
ment to Luther Rosser. 

Word that Reuben Arnold was affiliating with Leo Frank's defense hit 
the front pages while Dorsey was out of town. "I hazard not a thing in say- 
ing that there is no reason to believe Mr. Frank guilty of this horrible mur- 
der," the lawyer declared in his first public comment on the case. Then, 
underscoring the assumption at the heart of the defense's thinking, he 
added: "I do not believe that any white man committed the crime." Yet for 
all the credibility Arnold lent his new client, the fact remained that the non- 
white man to whom he was alluding was safely ensconced at the station 
house, his allegations unshaken, his presence overshadowing everything 
that lay ahead. Whatever it took, the defense had to do something to cripple 
Jim Conley's effectiveness before court convened. 



On the swelteringly hot afternoon of June 24— six days prior to the date 
the trial was scheduled to start— Luther Rosser and Reuben Arnold ap- 



I78 AND THE DEAD SHALL RISE 

peared in Judge Leonard Roan's chambers. In mid- July, Frank's law- 
yers explained, they were both due in court in the distant hamlet of Swains- 
boro in connection with the J. W. McNaughton murder case. (In 191 1, 
McNaughton, a physician, had been convicted of poisoning his mistress's 
husband with arsenic.) Citing the likelihood of a scheduling conflict, the 
men sought a postponement. Nonsense, replied Hugh Dorsey, just back 
from vacation and on hand to oppose the request. The Frank proceedings 
would be history by mid-July. The defense was stalling. Whatever the 
virtues of either side's positions, Roan paid them little heed. If the trial 
began on June 30, he interjected, it would by necessity be held in the judi- 
cial system's cramped and airless temporary home, the Thrower Building. 
However, if it could be delayed a month, there was another option. A court- 
room in the old Atlanta City Hall— a brick and marble confection at the 
corner of Pryor and Hunter streets just across from the nearly completed 
Fulton County Courthouse— would be available. While itself dowdy and 
undersized, the alternate venue boasted numerous windows— during a 
southern summer, no small attribute. There was also, the judge confided, 
something else: "Gentlemen, some months ago I promised my wife that I 
would take her to the seashore on the week of July 4 and spend some days 
there with her." 

Such was the aversion toward the prospect of conducting a lengthy trial 
in the stultifying Thrower Building and such was the respect for Roan— 
who, complaining of fatigue, had added that he could use a break as well— 
that the matter ended here. Dorsey dropped his objections and joined 
Rosser and Arnold in an enthusiastic discussion of the judge's trip. The 
press responded just as congenially, with the Journal splashing a photo- 
graph of an implacable-looking Mrs. Roan atop its front page beneath the 
headline: she really postponed the frank trial. Yet the bonhomie 
and bon voyages aside, all concerned knew that Roan's decision to delay 
the proceedings by a month— court would now convene on July 28— consti- 
tuted a break for Frank, giving the defense one last opportunity to neutral- 
ize the state's star witness. 

Unlike the first attack on Jim Conley, which had been predicated on the 
notion that the Negro, if left to his own devices, would implicate himself, 
the attack Rosser and Arnold now unleashed was carefully calculated and 
aggressive. Henceforth, they would operate less like lawyers than investi- 
gators, building their case much as the police would against a suspect. 
The goal, even at this late hour, remained Conley's indictment for Mary 
Phagan's murder. Barring that result, the attorneys hoped to amass such a 
body of evidence that come July 28, they could turn the tables on the pros- 
ecution, in effect establishing Frank's innocence by proving the Negro's 
guilt. 



SKIRMISHES 179 

The opening shot in the assault on Conley was fired in the July 9 editions 
of the Georgian under the front-page banner: 

NEW PHAGAN EVIDENCE FOUND 

The development that occasioned this headline was the discovery of a piece 
of pay envelope bearing Mary Phagan's employee number in the factory 
lobby near where Frank's accuser admitted he was sitting on the day of the 
killing. The clue, the Hearst sheet argued, pointed "more strongly than ever 
to robbery as the original motive for the attack upon the girl," focusing 
"suspicion more directly upon Conley." What the Georgian failed to men- 
tion, however, was that this piece of evidence was neither new nor univer- 
sally agreed upon as reliable. 

Both the prosecution and the defense had known of the existence of the 
pay envelope scrap for two months. It was part of a cache of equally intrigu- 
ing finds located on the afternoon of May 15 in the factory lobby by Pinker- 
ton operatives L. P. Whitfield and W. D. MacWorth— the same detectives 
who had secured, respectively, the statement from Mrs. Coleman tending to 
discredit George Epps and the statement from Etta Mills tending to dis- 
credit Nina Formby. According to the report submitted by MacWorth, this 
is what the men discovered: 

At the trap door I found what I took to be blood stains and also several 
pieces of cord used to tie bundles of pencils, and which was entwined in the 
pipes of a radiator adjoining the trap door. I also picked up a roll of paper 
and on examining it, found it to be the end of an envelope. I could see the 
number #186 stamped in the left-hand corner and a name written in lead 
pencil. I gave the paper to L.P.W. to take to the daylight, and he returned, 
saying that the name on the envelope was M. Phagan. Below the name 
could be seen the tops of figures, the plainest of which is the last, an aught. 

And there was more. As Whitfield noted in his file, the two also located one 
last object: 

We then secured an electric light and searched the floor around the trap 
door for blood stains, and we found several places that appeared to be 
spotted with blood. We also found a club with blood on it. 

While the implications of the Pinkerton agents' finds were clear, their 
provenance was not. Yes, the club— a stout rolling-pin-like implement used 
by draymen to scoot heavy boxes across the floor— could have been wielded 
in the attack upon little Mary, inflicting the wound above her left ear. And 



l80 AND THE DEAD SHALL RISE 

yes, the tangle of cords— one of which showed indications of having been 
freshly cut by a knife— could have provided the length employed to stran- 
gle her. And yes, the piece of pay envelope (the "aught" visible beneath the 
name corresponded to the zero that would have concluded the line denot- 
ing the victim's wage: $1.20) could have been the victim's. But as Lanford 
and Dorsey had been asking since the discoveries were made, why hadn't 
any of the numerous detectives who'd scoured the factory during the nearly 
three weeks that passed between the murder and the day Mac Worth and 
Whitfield struck gold noticed these clues? Furthermore, how was it that two 
agents who seemed to sympathize with Frank had made the finds? From 
the start, the police believed the items were plants. 

Yet in the days following the Georgian's exclusive, only the subtlest 
hints— the Constitution and Journal failed to run the story, while simultane- 
ously rumors began circulating that a rogue faction of Pinkerton detectives 
had allied with the defense— indicated there were doubts as to the finds' 
authenticity. Around town, the word was that new evidence implicating 
Conley had surfaced. Which was just as Frank's lawyers wanted it. 

Hard upon the revelation that the dead girl's pay envelope had been 
recovered came the news— again courtesy of the Georgian— that an eye- 
witness to Mary Phagan's murder had been located. This was Will Green, a 
39-year-old Negro carnival worker from St. Louis, whose story, at least as 
the paper reported it, did everything but name Jim Conley as the killer: 

I was in Atlanta for a few days. I was shooting craps on the first floor [of 
the pencil factory] with this negro that Saturday. This fellow was half drunk 
and was losing money to me. He got mad and cursed his luck. 

Before long a little girl went upstairs. This negro said he was going to 
take her money away from her when she came down. I thought he was 
fooling at first, but when she came down he started for her. I yelled at him 
not to do it, but he kept right on. Then I skipped out, for I didn't want to get 
mixed up in any trouble. I stayed around town until the next Monday, and 
then I read all about how a little girl had been killed . . . and I knew that 
she was the one I had seen come downstairs at the factory. 

I got out of town right away and went back to St. Louis. 

Will Green's narrative was also not without flaws. As with the clues 
located in the factory lobby, the carnival worker's existence had been known 
to the police since May, when an informant had wired headquarters from St. 
Louis. At the time, the detectives— who'd yet to question Conley and thus 
had no reason to believe he had been at the plant on April 26— had reacted 
coolly. Later, in the wake of Conley's affidavits, the defense had recognized 



SKIRMISHES l8l 

Green's import. By then, though, the carnival worker had vanished. During 
June, a posse comprised of Pinkerton operatives and Hearst stringers pur- 
sued Green down the Mississippi from St. Louis to Cairo, Illinois, then into 
Kentucky, Tennessee and finally Birmingham, where, according to the Geor- 
gian's July 13 exclusive, the man had been cornered. But the paper had 
glossed over the inconvenient fact that Green was not actually in custody, 
that he'd merely been traced to the Alabama city. Moreover, its account had 
failed to mention the equally salient point that Green's allegations were 
hearsay. The Negro had supposedly passed them on to a friend who'd in 
turn telegraphed the police. In the brain-numbing glare of the headlines, 
however, the holes in the Georgian's tale seemed minor. Most Atlantans 
believed that the carnival worker would be in court on July 28 to testify 
against Conley. Which, again, was exactly how Frank's lawyers wanted it. 

With fresh evidence in hand and an eyewitness allegedly en route, all the 
defense needed to complete its case against Conley was a confession, and 
by mid- July it was claiming to be in possession of exactly that. William H. 
Mincey, a 43 -year-old country schoolteacher who worked weekends for the 
American Life Insurance Company, had declared that on the afternoon of 
the murder, a drunken Jim Conley had told him he'd killed a girl earlier in 
the day. Intense and thin with deep-socketed eyes and a theatrical mus- 
tache, Mincey had made a favorable impression on Luther Rosser, and his 
sworn affidavit seemed to represent a genuine breakthrough. "We place the 
utmost reliance in it," Frank's counsel proclaimed. "It forms one of the 
strongest foundations for our belief in the guilt of Jim Conley." 

Attesting to the significance of Mincey's statement was the fact that even 
the Constitution and Journal gave it ample coverage, yet as with all news 
auguring well for Frank, it was the Georgian that played the story hardest, 
portioning out chunks of it in a series of increasingly frenzied extras that 
culminated with the July 14 publication of a first-person account authored 
by Mincey himself. Screamed the front-page double-deck banner: 

mincey's own story 
Tells How Conley Confessed Killing Girl 

As Mincey recounted it, he had watched the Confederate Memorial Day 
parade on April 26 and then, hoping to drum up business, walked to Vine 
City, the territory he'd been assigned by American Life. Entering the neigh- 
borhood on Mitchell Street, he said he'd made calls at homes on Electric 
Avenue and Rhodes Street before heading up a dirt path that gave onto 
Carter Street. Like most "policy men"— as insurance agents were known to 
blacks— Mincey believed he had a gift for recognizing customers. Yet in the 



l82 AND THE DEAD SHALL RISE 

Negro "with his head leaning down on his chest" sitting in front of a house 
off Carter Street, Mincey believed he'd found someone who behaved less 
like a prospect than a suspect: 

I stopped and got into a conversation with the negro about insurance. 
He told me his name was Jim Conley. I saw at once there was something 
wrong with him. He was nervous and excited, and tried to put me off and 
get rid of me by telling me to come to 172 Rhodes Street next week and he 
would take insurance. But as the negro had excited my curiosity by his 
incoherent, scattering way of talking and his nervous and excited manner, 
I remained standing there firing questions at him. 

He told me he was in trouble. I asked him if they had had him in jail or 
the stockade. He said no, but he was expecting to be in jail, and that right 
away. I asked him what for. 

He said, "Murder, I killed a girl today." 

I said: "Oh, I see! You are Jack the Ripper." 

The thought that occurred to me was that he meant he had killed some 
negro woman, and the only thing that seemed peculiar to me was that he 
said "girl" instead of "woman." 

I said: "Why did you kill her?" 

He began to get angry and I saw he was drunk. 

He said: "Now, that is for me to know and you to find out." 

I did not attach much to what he was saying, thinking it was the bab- 
bling of a drunken negro; but his restless, quick glancing around and his 
keeping his eyes on me, and the wild, unnatural glare in his eyes caused me 
to want to press him further to find out really what he had been doing. 

I said: "Let me write your insurance this afternoon," and started down 
to where he was. 

He said: "Don't you come down here," speaking this in an angry, threat- 
ening manner. This caused me to press him the more. 

I said: "No, I will take your application now," and continued. 

He said: "I tell you not to come down here." 

When he saw I was coming on anyway, he jumped up, and as he went 
round the corner of the house he said: "I have killed one today and I don't 
want to kill another." 

I said: "Well, one a day is enough; that is 365 a year," turned and walked 
off. 

Gripping as this account was, it, too, was problematic, undermined by 
Mincey's spotty chronicle of his early attempts to alert the authorities to 
Conley's confession. On the TUesday after the murder, he claimed he'd vis- 
ited the factory only to find that no one would listen to him, and had left 



SKIRMISHES 183 

"thoroughly disgusted." Following the Negro's arrest, he maintained he'd 
stopped by headquarters, where an officer whose name he couldn't remem- 
ber had allowed him to question Jim, who denied meeting him. Finally, he 
contended he'd mailed an anonymous letter to Dorsey informing him of 
what Conley said and urging him to take action. Only when nothing hap- 
pened, he added, had he contacted Rosser. 

In sum, Mincey appeared to be both self-dramatizing and self-pitying, an 
insight that didn't escape the state's lawyers. In response to the tale, Frank 
Hooper declared: "I sincerely doubt if [the] Mincey affidavit will ever be 
heard from as a seriously considered piece of evidence in the Phagan case. 
The statement was undoubtedly made and sworn to, but the prosecution 
will be able to disprove it if its signer is called as a witness." 

Still, William H. Mincey had struck a nerve, and the prosecution couldn't 
hide it. Not only did his affidavit force Dorsey to reinterrogate his star wit- 
ness (conley in sweatbox again, raved the Georgian in a circus-type 
banner), but it led to another outing for Jim, this time to Vine City. There, 
Detectives Starnes and Campbell led the prisoner around the neighbor- 
hood to see if anyone could recall seeing him in a tete-a-tete with Mincey 
on the day of the crime. (No one could, although the factory's day watch- 
man, E. F. Holloway, would soon confirm that Mincey had visited the plant 
on the Tuesday after the murder.) Meanwhile, Dorsey's staff was said to be 
tracking down acquaintances of Mincey for an assault on his credibility. 



All in all, Luther Rosser and Reuben Arnold had pulled off an impressive 
feat. Leaving aside the myriad questions concerning methodology and 
veracity, they had built a case against Jim Conley grounded in physical evi- 
dence, supported by an eyewitness account and topped by a confession. At 
the least, the lawyers insisted, their new evidence warranted a hearing, but 
the prospect of receiving one was slim. In the history of Fulton County, not 
only had no grand jury indicted a suspect against a solicitor's wishes, no 
grand jury had met to consider such action against a solicitor's wishes. And 
there was no doubt as to the wishes of this particular solicitor, who'd made 
it plain from the outset that he'd fight any move aimed at undermining 
Conley's effectiveness in court. 

Yet despite Hugh Dorsey's opposition, if ever there was a moment in 
which opposing counsel might persuade a grand jury to act against a solici- 
tor's will, that moment was now. In early July, the term of the panel that had 
indicted Frank had expired, and a new panel— whose twenty members had 
not heard the prosecution's case— had taken its place. This group could 
prove sympathetic to the argument that the evidence connecting the Negro 
to the crime was stronger than the evidence on which Frank was indicted. 



184 AND THE DEAD SHALL RISE 

Which was why even as Mincey's affidavit was dominating the papers, 
Rosser and Arnold were lobbying the just-seated jurors to confound prece- 
dent and take up the case against Conley. 

Predictably, the Georgian spearheaded the campaign. By this date, 
Hearst's sheet had largely abandoned objectivity, completing the process 
that had started in mid-May when it began flirting with a pro-Frank stance. 
As Herbert Asbury would recall in the American Mercury: 

Although evidence was constantly piling up against [Frank], toward the 
end we worked as hard trying to prove his innocence and build up senti- 
ment for him and against the Negro, Jim Conley, who had confessed to 
helping Frank hide the body, as we did to find legitimate news of the case. 
The Constitution and the Journal turned more or less against Frank, 
though never violently so, largely because the Georgian had taken the 
opposite position. 

Every Sunday, the Old Police Reporter— the Georgian's pseudonymous 
man on the Phagan beat— weighed in either to attack the state's case or 
build up the defense's. On July 6, he analyzed the evidence with an eye 
toward highlighting all facts pointing toward Conley as the murderer. 
According to his calculations, there were eighteen such facts. A week later, 
he analyzed the same evidence looking for facts damning to Frank. Here, 
however, he could come up with only three, each of which he dismissed as 
sheer coincidence, whereupon he seized the opportunity to readdress the 
facts against Conley, proclaiming: 

If it can be shown to the Grand Jury that Conley did say to Mincey, "I 
have killed one girl today, and do not wish to kill another," and that he 
was in a half-drunken stupor when he said it, that, in connection with the 
other evidence against Conley unquestionably would seem to make it 
the present Grand Jury's positive DUTY to indict Conley, without further 
ado! 

In his next column, the Old Police Reporter argued that past history 
notwithstanding, the grand jury was not answerable to the solicitor —was, in 
truth, answerable only to itself: 

It would be unusual for the Grand Jury to indict Conley with an indict- 
ment already standing against Frank for the same offense. It would not be 
an unheard-of thing, however. 

Grand Juries are laws unto themselves. They may indict whom they 
please and when they please. 



SKIRMISHES 185 

Indeed, the law and their oaths make it imperative that a Grand Jury 
indict ALL persons they believe deserving of an indictment, regardless of 
whether that indictment affects pending cases advantageously or disad- 
vantageous^. 

Relentless as the Georgian's propagandizing was, the defense did not 
rely solely upon the paper in its efforts to influence the grand jury. Rosser 
and Arnold knew where to apply pressure, and they did, sponsoring a 
letter- writing campaign in which correspondents— many hiding behind the 
cloak of anonymity— beseeched the grand jurors to take up the case against 
Conley. 

On July 18, W. D. Beatie— the realtor who'd been appointed foreman of 
the newly empaneled grand jury— arrived at Dorsey's office and, in a move 
that shocked the Atlanta bar, asked the solicitor to call the body into ses- 
sion to consider the new evidence suggesting that Jim Conley had mur- 
dered Mary Phagan. When Dorsey refused Beatie 's request, the foreman, 
as the Constitution gravely recounted, "went over the head of the state's 
legal representative in Fulton County" and ordered the jury to convene on 
Monday, July 21, a week before Frank's trial was scheduled to begin. For 
the solicitor, the defeat was the worst sort of affront, threatening his case 
while flouting his authority. Afterward, all he could manage was a terse 
statement: 

The meeting's only purpose will be to exploit the evidence and embar- 
rass the State, and I hope the Grand Jury when it meets will decide to leave 
the matter alone. 

The indictment of Conley at this time will be a useless procedure that 
will not stop the trial of Frank. 

Conley is in jail and is going to stay there for some time. He is where the 
authorities can put their hands on him, and he can be indicted much more 
properly after the Frank case has been disposed of than before, and by the 
delay there is no danger of a miscarriage of justice. 

Just two days would pass between Beatie's announcement and the con- 
vening of the grand jury, making the fight for the jurors' loyalties as brief as 
it was intense. 

Sallying forth for the prosecution was William Smith. In a statement pub- 
lished in the Constitution and Journal, Conley's lawyer, after alluding to "an 
unseen force" that had bullied the jury into taking up the case, attempted to 
reassure Atlantans as to his client's honesty while simultaneously hinting 
darkly that it was the silent man in the Tower who'd been less than forth- 
coming: 



l86 AND THE DEAD SHALL RISE 

Jim Conley has been dealing fairly with the state of Georgia. His story 
has been an open book to the sworn, trusted prosecuting officers of this 
state. He is not skulking coward-like behind the protection of iron bars, nor 
have his lips been sealed with tomb-like silence, until he can spring sud- 
denly in a court a well-prepared statement, which the state has no oppor- 
tunity to investigate and disprove. Conley allows himself to be grilled, 
cross-examined and unceasingly questioned by the representatives of the 
state. He is talking and talking now. Conley says to the state of Georgia, 
here is my story, investigate it, sift it, and prove it a lie, if you can. 

What more could the grand jury ask? Conley is giving the state a 
square deal; Conley is remaining a voluntary prisoner, and no honest citi- 
zen doubts that he will be held to account for his part in this terrible 
tragedy. 

Smith's duty to Conley discharged, he then praised Dorsey, painting a 
picture of an independent prosecutor at war against the entrenched inter- 
ests of capital and privilege: 

If the grand jurors do not want to please Frank and his friends, if they do 
not want to help clear Frank, they had better leave this alone, for the pres- 
ent. The good people of this county elected Hugh Dorsey as the solicitor 
general. Under the law, this makes him the legal adviser of the grand jury. 
There is not a businessman on the grand jury that does not follow in his 
own affairs the advice of the lawyer ... to whom he goes for counsel. Let 
the grand jury do with the public business what they would do with their 
own matters . . . 

Does the grand jury think their legal judgement or their personal 
integrity above that of our solicitor general, or do they doubt the profes- 
sional or private character of Hugh Dorsey? The people of this county 
know that Dorsey is straight; that in this case he is fighting brains, money 
and influence. I know that he is standing by what he thinks right, and with 
constant threats thrown at him that they will defeat him at the next elec- 
tion and with every handicap thrown in his way in the discharge of his duty 
in prosecuting a white man who has wealth and influence. 

While Dorsey let Smith do his lobbying, Rosser and Arnold did their 
own. In a joint statement published Sunday in all three papers, Frank's 
lawyers again asserted that the solicitor possessed no authority to dictate 
the grand jury's actions: 

The Grand Jury is an independent body; it is under the control of no one. 
A Solicitor General is the adviser of that body as to legal principles 



SKIRMISHES 187 

merely, but he has no right to exercise any sort of control in determining 
who shall or shall not be indicted. 

To permit a Solicitor General to use the position intrusted to him by the 
people to decide for himself who shall not be indicted is a danger too great 
to be contemplated. 

With that, Rosser and Arnold accused Dorsey of prosecuting their client 
merely for the "gratification of his professional pride," charged him with 
withholding evidence and suggested that he had manipulated the previous 
jury in such a way as to deny it access to Conley's affidavits prior to Frank's 
indictment. Finally, after dismissing Smith's remarks ("It is appropriate that 
he should bolster up the Solicitor, as he depends mightily upon the Solicitor 
to protect his negro."), the lawyers warned the jurors that if they did not 
indict Conley, the "community would resent the rank favoritism shown this 
confessed criminal." 



The atmosphere inside the Thrower Building conference room the Monday 
morning the jurors convened to take up the case against Jim Conley was 
explosive. As one reporter put it, not since the days immediately after Mary 
Phagan's body was found had there been as much electricity in the air. With 
eighteen jurors— just enough for a quorum— present, Foreman Beatie shut 
the doors and Dorsey took the floor. The solicitor began by citing legal 
precedents. Tbrning to the appropriate authority, he read: 

The Solicitor General is to determine whether or not to commence a 
particular prosecution, or to continue a particular prosecution or to dis- 
continue one already begun. The Solicitor General draws the bill of indict- 
ment and examines the witnesses, not with a view to the interest of any 
client, but alone to subserve public justice. 

The whole prosecution from the time the case is laid before him is 
under his direction, supervision, and control. 

Dorsey did not, however, stop here, proceeding to address the substance of 
his case against Frank and the reasons why he believed Conley's indictment 
would threaten it. After an hour on his feet, he sat down. Minutes later, 
the jury voted not to indict Conley. Considering the fact that the panel 
once again contained several Jews— among them Oscar Elsas, president 
of the Fulton Bag and Cotton Mill, which, not insignificantly, was a client 
of Rosser 's firm— this was a stunning victory for the solicitor. When he 
emerged shortly after noon, he could not resist chiding the defense for the 
manner in which it had tried to go over his head: 



l88 AND THE DEAD SHALL RISE 

I am requested by the Grand Jury to say that no action will be taken at 
this time on the James Conley matter, and that that body will not pay any 
attention whatever to anonymous communications. 

Thus this final pretrial skirmish ended in triumph for the state. Not sur- 
prisingly, the defense attempted to downplay the defeat. Declared Reuben 
Arnold: "It made absolutely no difference to us. It was purely a technical 
point that would have been in our favor." But such soft-pedaling could not 
hide the magnitude of the loss. 



During the remaining few days before court convened, the inevitable 
parrying and thrusting continued, shifting the advantage to the defense 
here, the prosecution there. Boding well for Frank was Chief Lanford's 
announcement that one of the state's most anticipated witnesses— Nina 
Formby, the madam who'd charged that Frank had phoned her on April 26 
seeking a room— would not testify. According to the newspapers, the police 
no longer placed any credence in the woman's story. Meantime, the prose- 
cution received a boost when Reuben Arnold made the mistake of asking 
the judge assembling the panels from which the Frank jurors would be 
drawn to select those panels not from the vast pool of petit jurors to which 
all registered voters belonged but from the smaller pool of grand jurors 
comprised of Atlanta's most inflential citizens. The judge not only rejected 
the request, but Dorsey seized upon it, branding the defense both elitist and 
desperate. 

Such exchanges, however, were now the exception. The season of con- 
tentious preparation had ended. All was in readiness, and all eyes focused 
on the cells where the antagonists awaited. 

At the Tower, Leo Frank, as he'd done almost from the first days of 
his incarceration, surrounded himself with friends and business associates. 
The afternoon before court convened, Frank's wife, his mother (who'd 
just arrived from New York), his friend Julian Boehm and a dozen other 
well-wishers gathered. Lucille brought hors d'oeuvres and fresh Georgia 
peaches and the mood was confident, reassuring. Had it not been for the 
surroundings, it would have been hard to imagine that the guest of honor 
would the next morning go on trial for his life. 

Meanwhile, several blocks to the west at the headquarters lockup, Jim 
Conley was readying himself in quite a different way. Since late June, Con- 
ley had been participating in a series of late-night tutorials that would come 
to be known as the "midnight seances." These sessions were divided into 
separate sections— one focusing on the content of the Negro's upcoming 
testimony, the other on the delivery. The faculty charged with ironing out 



SKIRMISHES 189 

the substance of Jim's stories included Detectives Black, Starnes and Scott, 
Chief Lanford and Dorsey. 

When it came to public speaking, however, Conley had but one instruc- 
tor: William Smith. Over many long evenings, the lawyer edified his pupil on 
the rules of discourse, stressing the importance of enunciation, timing and 
maintaining eye contact with an audience. Then Smith, a fair mimic, gave 
the Negro a taste of Luther Rosser's corrosive manner, preparing him for 
the inevitable courtroom encounter. On the eve of the trial, Smith was 
breathing the heritage and fire of the South's oratorical tradition into this 
unlikeliest of Negro students. Not that the lawyer would have phrased it so 
grandly. Years later, describing what he'd hoped to accomplish, he bluntly 
stated: "to render Conley impervious to cross-examination." 



TEN 



And so July 28 came— hot, with high clouds and the temperature ris- 
ing. Outside the redbrick pile of the old Atlanta City Hall this Mon- 
day morning, the crowd was so thick that the intersection of Pryor 
and Hunter was nearly impassable. Trolley cars could make the turn only 
with a squealing of brakes and clanging of bells. Yet for all its number, the 
throng was orderly and quiet, its members content simply to gaze at the 
windows behind which the great battle would now transpire. 

Inside, the mood, depending on one's location, fluctuated wildly. In a 
vestibule just off the second-floor courtroom, Leo Frank paced back and 
forth, flicking a rolled-up newspaper at the furniture. To avoid the crush of 
curiosity seekers, Frank had been whisked into the building at 7:30. Since 
arriving, he'd made a brief statement predicting his acquittal to a reporter, 
then devoured the breakfast his brother-in-law Charles Ursenbach had 
brought him. Around 9:15, his wife and mother appeared. At the sight of 
the women, Frank smiled and raised his hands, and there followed a series 
of embraces. After Lucille took her husband in her arms, kissing him and 
fondling his hair, his mother grabbed his chin and shook it as if to say he 
couldn't lose. The gesture elicited a confident laugh from Frank, yet nothing 
appeared to truly ease his mind. Noted the Journal: "Hardly once during 
this morning did Frank sit down." 

Up on the third floor in the rooms— one for whites, the other for 
Negroes— set aside for witnesses, there was also little sitting, but not due 
to any anxiety on the part of those assembled. To most of the 120-some peo- 
ple whose testimony would determine Frank's fate, this was a holiday. 
With what amounted to the entire workforce of the National Pencil Com- 
pany subpoenaed, the halls were packed with blushing girls in summer 
dresses. Young male employees lounged in the doorways, smoking ciga- 
rettes. Though some of those summoned evinced a sober mien, giddiness 
prevailed. Observed the Journal: "The men and girls [were] laughing and 
chatting as if they were at a pleasure party. There is none of the morbid 
curiosity of the street crowd here." 

In the courtroom itself, a refreshed-looking Judge Leonard Roan sat in 
his high-backed leather chair behind the bench exchanging pleasantries 



PROSECUTION 191 

with the opposing counsel. At the defense table, Luther Rosser and Reuben 
Arnold, both in white linen suits, were the picture of patrician Southern 
lawyers even if Rosser, true to form, had forsaken neckwear. Hugh Dorsey, 
however, was not so elegantly turned out. From his blue cotton suit to his 
black brogans, the solicitor was every inch the people's advocate. What 
these sartorial differences suggested, sheer numbers reinforced. Swirling 
around Rosser and Arnold was an army of legal talent the likes of which the 
Atlanta courts had rarely seen. All told, the defense employed eight attor- 
neys—among them Herbert Haas, of counsel to the pencil factory; Rosser 's 
partner Stiles Hopkins, son of the president of Emory College; Rosser's 
son, Luther Jr.; and Oscar Simmons and Paul Goss, engaged solely to assist 
in picking a jury and carrying notebooks crammed with information to help 
them do so. Against this silk-stockinged legion stood Dorsey, his associate 
Frank Hooper, Assistant Solicitor Ed Stephens, William Smith— who was 
present not only in his capacity as Jim Conley's lawyer but as Dorsey's jury 
consultant— and office clerk Newt Garner, who lugged the guts of the 
state's case in two beat-up valises. Also sitting at the prosecution table, 
looking uncomfortable in his Sunday best, was a final interested party, Mary 
Phagan's stepfather, John W. Coleman. 

The room in which the trial would take place had formerly been used for 
city council meetings. Hanging from the pressed tin ceiling, the clustered 
globes of a dozen electric chandeliers cast a soft glow throughout. Bisecting 
the hall laterally, a row of fluted columns formed a boundary between the 
gallery and the field of battle. These reminders of civic grandeur were 
not, however, what initially caught the eye. Perched at intervals along the 
room's horseshoe-shaped rail were six ozonators, precursors of the air con- 
ditioner. The machines reoxygenated the chamber and, in combination with 
the electric fans that were bolted everywhere to the walls, were expected to 
blunt the crushing heat. Confidence in the devices was such that exterior 
windows were shut. The Georgian predicted that the courtroom "probably 
will be the coolest and best ventilated place in Atlanta." 

Yet despite its antiquated charm and innovative preparations, the old 
city hall facility was sorely lacking in one regard: size. Inside the tiny arena, 
the principals found themselves sitting in ladder-back chairs jammed prac- 
tically on top of one another. The teams of opposing lawyers were barely an 
arm's length apart. The court reporters squatted on the lip of the podium 
supporting the judge's bench, their notebooks balanced on their knees, 
their feet braced against the witness stand. The press was consigned to a 
cramped table in a corner piled high with copy paper and contiguous to the 
jury box. Meanwhile, the 250-seat spectator section— today filled chiefly by 
prospective jurors— tightly embraced the room on three sides, creating a 
fishbowl effect. 



192 AND THE DEAD SHALL RISE 

At precisely 9:58 a.m., following an hour given over to the impaneling of 
the veniremen, Dorsey announced the case of the State versus Leo M. Frank 
for the murder of Mary Phagan, whereupon the swearing of witnesses— 
a procedure that in Georgia in 1913 was conducted at the opening of a 
trial— commenced. After the solicitor called his list, bailiffs escorted the 
men and women upon whose testimony the prosecution would rely to the 
bench, and the familiar do-you-solemnlies reverberated through the cham- 
ber. What occurred next, however, was unexpected. 

Approaching the bench, Rosser and Arnold stunned the courtroom by 
asking Judge Roan for a special dispensation to swear their witnesses at a 
later hour. The defense list, they maintained, was as yet fragmentary, and to 
complete it this morning would occasion a long delay. Immediately, Dorsey 
was on his feet, protesting that it would be unfair to the state if opposing 
counsel was so indulged. Judge Roan agreed with the solicitor, rejecting the 
request but granting Frank's lawyers unlimited time to prepare, which, as it 
turned out, was no time at all. 

Within an embarrassingly brief five minutes, Rosser and Arnold had 
fleshed out their list, and as Stiles Hopkins began to call the names, it 
instantly became clear why they had been loath to show their hand: They 
were contemplating the risky tack of introducing Frank's character as a 
part of their case. There was no other way to explain the scores of Atlanta 
Jews who had been summoned. Nor was there any other way to account for 
a delegation of Cornell faculty members and graduates from Ithaca and 
elsewhere in the North. Plainly, this list of well over one hundred names was 
more than just a list— it was a theory of the defense, one that carried with it 
the prospect that in rebuttal, the state could introduce witnesses to testify 
to Frank's bad reputation. 

Hence before a word of testimony was uttered, the defense had suffered 
a tactical setback, although the damage was mitigated by the fact that the 
prosecution did not emerge from the process unscathed. Aside from Jim 
Conley, whom Dorsey had pointedly not called because he wanted to keep 
him at headquarters until the last instant, Albert and Minola McKnight 
were the state's most sensational witnesses. Their story of what allegedly 
transpired in the Selig home on April 26 destroyed Frank's alibi. Yet as 
nearly everyone in the courtroom noticed, when the clerk invoked Albert's 
name, no one answered. Bailiffs were quickly dispatched to search for the 
wayward Negro, but if his wife's disposition was any indication, his absence 
may have been a blessing to the prosecution. After Minola was sworn, she 
again disavowed her notorious affidavit. 

Emotions in the little courtroom were still mildly atingle from these 
developments when Leo Frank, his wife and his mother made their entries. 
For Frank, this was his first public appearance since the coroner's inquest 



PROSECUTION 193 

two and a half months earlier. Before he reached the defense table, he was 
surrounded by friends. The outpouring of affection was so intense that for 
several minutes the proceedings ground to a halt, giving the reporters at the 
press table the chance to scribble madly. To one of the Georgian's men, the 
factory superintendent was the image of poise: 

If there was any fear in the heart of the young prisoner, it did not show 
in his calm features. He seemed perfectly assured and self-possessed. 

Yet to a Constitution writer, he seemed overwhelmed: 

Frank looked quickly about him as he came into the crowded room. He 
appeared, as a person frequently is, unable to take in all at once the scene. 
As he made out the straining faces and searching eyes, it seemed to dawn 
upon him that he was the man for whom the crowd had gathered and at 
whom all eyes were turned. His expression seemed to indicate that he was 
telling himself, "It's my appearance that has brought this stir and what can 
these people be thinking about me?" 

Whatever the disagreement regarding Frank's state of mind, there was 
accord regarding his attire, which the Georgian termed "natty." For this 
momentous day, he had chosen a light gray mohair suit set off by charcoal 
pin stripes and a "fancy" black-and-white tie. The look was dignified but 
hardly reserved. Lucille, too, was sober yet stylish. Black hat trimmed in 
black chiffon and netted by a pulled-back veil, black suit smartly tailored, 
beribboned black-and-white watch fob peeking out from a white silk waist, 
she was the definition of understated refinement. The couple made a strik- 
ing impression. No one else in the chamber was so well dressed. 

Once the Franks took their seats in a tight semicircle of chairs that linked 
the defense table to their right with the judge's bench to their left and 
looked directly across the packed courtroom at the jury box, order was 
restored, and the voir dire began. 

One panel at a time, the veniremen filed into the box, and to each group, 
Hugh Dorsey posed the same carefully worded questions to determine 
whether any preconception as to guilt or innocence existed. Many of the 
potential jurors admitted outright to a prejudice, disqualifying themselves. 
Others, however, were not so forthcoming. 

When a master plumber named A. F. Bellingrath confidently swore that 
he possessed an open mind regarding Frank, Reuben Arnold, who spoke 
for the defense throughout this process, consulted the notebooks prepared 
by Simmons and Goss.Then he was on his feet. 

"Haven't you formed an opinion from reading the newspapers and 



194 AND THE DEAD SHALL RISE 

haven't you expressed your opinion to the effect that Frank is guilty?" 
Arnold asked. "Didn't you express such an opinion in the presence of Mr. 
Brent?" 

Confronted with this incident, Bellingrath allowed that he had said it 
"looked that way," and Judge Roan announced: "I think he should be set 
aside for his own sake." 

Yet for every venireman shown to be leaning against Frank, there 
seemed to be another partial to him, as Dorsey demonstrated during his 
questioning of a shoe salesman named W. W. Hemmett. 

"Haven't you recently expressed an opinion that Frank is innocent and 
Conley is guilty?" the solictor asked Hemmett. 

"No, I never have," Hemmett answered, whereupon Dorsey referred to 
notes furnished by William Smith, then reminded the prospective juror of a 
"certain talk he had with acquaintances," forcing him to admit that he had 
indeed said he would need to hear some pretty good evidence before he'd 
convict Frank. With no further ado, Roan rejected the man. 

Thus were dozens of potential jurors found wanting. During these vol- 
leys, the Franks could not have responded more differently. Throughout the 
morning, Lucille seldom removed her gaze from the solicitor's face. Anger 
appeared to blaze from her eyes and seeming scorn curled her lips. Con- 
versely, Leo was utterly engrossed in the process. When a new panel was 
brought in, he looked intently into the face of each man, beginning at the 
upper row and shifting his gaze from one to another until he had scruti- 
nized them all. Like the engineer that he was, Frank was calculating angles 
and dynamics, attempting to identify in bone structure or expression the 
torque of latent hostility. 

For both the prosecution and the defense, there was, of course, a final 
recourse should a venireman whom either side found objectionable survive 
the initial questioning. Each camp was allotted twenty preemptory strikes, 
and it was with an eye toward advising his counsel when to exercise the pre- 
rogative that Frank studied physiognomies. As the Georgian observed: 

Not infrequently, when the Solicitor had closed his examination and 
had said, "Juror, look on prisoner; prisoner, look on juror," Frank would 
turn to Attorney Arnold and an instant later the announcement would be 
made, "Struck by the defense." Frank evidently was playing a large part in 
the striking of jurors. 

In contrast, Dorsey based his decisions on more objective criteria— 
striking, for instance, all veniremen opposed to capital punishment. Addi- 
tionally, the solicitor chose not to strike any of the Negroes on the panels. 



PROSECUTION 195 

Hence when Earl Davis and E. E. Hawkins took their spots in the jury 
box— a place that blacks occasionally ended up in because, though barred 
from the all-important Democratic primary, they were allowed to vote in 
the usually meaningless general election and were thus eligible for jury 
duty— Dorsey accorded them his blessing, forcing the defense to expend 
two of its strikes or else find itself in the unenviable position of having to 
persuade an integrated jury that Jim Conley was a liar. 

Of the twelve veniremen who composed the first panel, all were dismissed. 
The fourth, sixth and seventh panels also failed to yield a single juror. Yet the 
slow start notwithstanding, the process would not be unduly long. According 
to one observer, a majority of the candidates had "weighed the gravity of 
the situation" and were "prompt and intelligent" in answering their inter- 
rogators' queries. At 11:20, the first juror— Atticus H. Henslee, a traveling 
salesman with the Franklin Buggy Company of Barnesville, Georgia— was 
selected, and from that point forth, the group fell into place. By 1:25, when 
court recessed for lunch, the task was finished. In addition to Henslee, the 
body that would sit in judgment of Frank included F. V.L. Smith, an electrical 
manufacturing rep; Monroe S. Woodward, a salesman at King's Hardware; 
Deder Townsend, a bank teller; J. F. Higdon, a contractor; Marcellus Johen- 
ning, a shop foreman; F. L. Wisbey, a cashier; Fred Winburn, a railroad freight 
agent; XT. Ozburn, an optician; W. S. Metcalf, a circulation clerk at the Geor- 
gian; W. M. Jeffries, a realtor; and Charles Bosshardt, a pressman at the Foote 
& Davies printing firm. Eleven of the men were married— one for just a few 
weeks — and five were fathers. For their trouble, each would earn $2 a day. All 
would be sequestered at the Kimball House for the duration. 

Predictably, the boys at the press table knocked themselves out trying to 
size up the jurors. Commented a Constitution reporter: 

Of the many juries called upon to serve in famous cases in Fulton 
County, none has classed higher in intellectual fitness or physical appear- 
ance than the men who make up the Frank jury. For the most part the jury 
is composed of young men this side of 40— men who have the appearance 
of having succeeded in life and who give promise of still greater success. 

Considering the jurors' occupations, this analysis seems inflated. Yet even 
the defense's fiercest champion, the Georgian's James B. Nevin, gave the 
group high marks: 

The jury apparently is much above the average— it was plain enough all 
along that the defense was seeking a jury of high intelligence, and a city 
jury, moreover. 



I96 AND THE DEAD SHALL RISE 



When court reconvened Monday afternoon, Hugh Dorsey called Mrs. Fan- 
nie Coleman. In her black hat and veil, the victim's mother could not have 
made a more piteous first witness: 

"When did you last see Mary Phagan alive?" the solicitor began. 

"On the morning of April 26, at my home." 

"When did she get up, and when did she have breakfast?" 

"She got up about 11:00 and had breakfast right afterwards." 

"What did she eat?" 

"She ate some cabbage and some bread." 

"What time did she leave home?" 

"About a quarter to 12:00." 

Despite its restraint, Dorsey 's catechism was leading to an operatic pass, for 
as he was conducting it, his clerk was standing in front of the witness stand, 
laying out the items that in a matter of speaking would reincarnate the vic- 
tim and evoke her horrible demise. 

The clothes Mary Phagan had been wearing when Newt Lee found her 
body in the National Pencil Company basement made a heartrending dis- 
play: bloodstained dress, torn hose, scuffed pumps, battered straw hat. At 
the sight, Mrs. Coleman broke down and sank back in her chair, her face 
hidden by a large palm-leaf fan. After the officer in charge of courtroom 
security fetched the poor woman a glass of water, she collected herself, but 
not for long. The grim tableau was too much to bear, and not just for her. 
Observed the Journal: "Many spectators in court were affected. Mrs. Frank, 
mother of the accused, put her own hand before her face and bowed her 
head." Evidently, however, Leo Frank's response was not so empathetic. As 
the Constitution acidly noted: 

During [Mrs. Coleman's] mental suffering, Frank carefully kept his eyes 
away from her, although he sat facing her and the jury. He seemed either 
unwilling or unable to view the mother's grief. 

For the state, the case could not have opened more perfectly. Understand- 
ing that a mother's tears spoke louder than words, Dorsey promptly ended 
his examination, thereby appearing the soul of consideration but in reality 
putting the defense in a bad spot. At this juncture, the last words Frank's 
lawyers wanted to hear were: "The witness is with you." 

When Luther Rosser approached the stand, Mrs. Coleman was still crying. 
The lawyer started his cross-examination in as kindly a way as possible. He 



PROSECUTION 197 

inquired softly if "Miss Mary's hat" appeared as it had on the morning of 
April 26. No, Mrs. Coleman replied. On that Saturday, it had been adorned 
with a ribbon and red flowers. Then he asked if Mrs. Coleman had actually 
observed her daughter board the streetcar to town. Again, she replied no. The 
stop was at a little store two blocks from their home. Gingerly, Rosser had 
succeeded in touching on a vital defense assertion— that the victim had been 
robbed of items Frank simply would not have taken— while also casting 
doubt on the state's murder-day timetable, which to work as Dorsey intended 
had to begin at 1 1 45. Yet for all the lawyer's care, he'd reached his limit: 

"Do you know a boy named Epps?" he asked, referring to young 
George, the newsie who'd told the coroner's inquest that Mary confided to 
him that Frank had made lascivious remarks to her. 

"Yes." 

"Was he a friend of Miss Mary's?" 

"Yes, to a certain extent, he was." 

"Did you not talk to a certain gentleman on May 3 . . ." 

Before Rosser could complete the question, Dorsey was on his feet, object- 
ing. The solicitor knew that on May 3, Mrs. Coleman had told Pinkerton 
detective L. P. Whitfield that her daughter "detested" Epps. Since Dorsey 
intended to call the boy, he had no intention of letting his opponent continue 
in this vein, although for the court's consumption, he argued that Rosser's 
line of inquiry was immaterial unless he was trying to impeach Mrs. Coleman. 
In response, the defense lawyer denied that he was trying to impeach anyone 
and twice attempted to rephrase the question, but each time, Judge Roan sus- 
tained Dorsey's objection, leaving Rosser no choice but to quit the field. 



From the instant the state's second witness, the aforementioned George 
Epps, bounded to the stand, the pall that just moments before had hung 
over the courtroom lifted. Not only was the fifteen-year-old barefoot, but 
his shiny noggin looked, in one reporter's words, "as though a barber had 
passed a razor across it that very day." 

Epps's testimony was not as Tom Sawyerish as his appearance. At least 
not initially. Under Hugh Dorsey's examination, he gave a straightforward 
account of his April 26 activities, swearing that he'd been on the English 
Avenue car when Mary Phagan boarded that morning at 1 1:50 and that the 
two had ridden to town together. At 12:07, he claimed, they'd disembarked 
at the corner of Marietta and Forsyth streets. After promising to meet him 
at 3:00 to watch the Confederate Memorial Day parade, Mary, the boy said, 
had walked south on Forsyth to the pencil factory to pick up her wages. 



I98 AND THE DEAD SHALL RISE 

In essence, this was the narrative Epps had told the coroner's jury. How- 
ever, he wouldn't be allowed to address the subject that had shocked the 
inquest, for when Dorsey posed his next question, the one everyone was 
awaiting, Rosser fiercely objected, prompting the solicitor to withdraw it 
and sit down. Consequently, Dorsey 's final query— "What did she say to 
you on the car in reference to L. M. Frank?"— hung in the air unanswered, 
floating on the periphery of the jurors' consciousness, either a bomb that 
hadn't exploded or a bubble that should have been pricked. 

Yet the substance of Epps's testimony was ultimately of less import to 
the state than his ability to provide a needed comic interlude, one that came 
during the defense's cross-examination and at Rosser's expense, for true to 
his looks, young George was a hayseed jester capable of turning an over- 
bearing lawyer's queries into unintended straight lines: 

"How did you know what time it was when Mary Phagan joined you 
going downtown that morning?" Rosser began. 

"I looked at a clock just before I took the car," Epps replied. 

"You didn't say anything about a clock when you testified before the 
coroner's jury." 

"Nope, but I looked at one just the same." 

"How did you know what time it was when Miss Mary left you?" 

"I estimated it from the time she got on the car, and I told it by the sun. 
I can tell time by the sun." This, with evident pride. 

"You can tell the time to within seven minutes by the sun, then?" 

"Yes, sir, I can," came back a childish treble. 

"Did Mary get off the car with you?" 

"Yes, sir." 

"You went to sell your papers then?" 

"Yes, sir. I thought I could sell them by 3:00 and meet her as she had 
agreed with me to do." 

"Had you sold out by 4:00?" 

"No, sir, I finished sellin' out at the ball grounds." 

"What time was it when you finished selling your papers?" Rosser was 
plainly baiting a trap. 

"I don't know, sir," Epps replied. 

Sensing his quarry's obliviousness, Rosser pounced: "Couldn't you tell 
by the sun?" 

"No sir, the sun had went down by that time," Epps retorted brightly, 
not only escaping, but winning over the courtroom. 

Observed the Constitution: "The positive way in which little Epps replied, 
and the stress upon the 'had went' caused a general ripple of laughter." This 



PROSECUTION 199 

mirthful wave had yet to diminish when, a second later, Epps, having 
tweaked the nose of Atlanta's legal Goliath, was excused. 



Shortly after Monday's final witness, Newt Lee, took the stand, the pro- 
ceedings were interrupted by an explosion of flash powder from the south 
side of the gallery, behind the press table, where half a dozen photographers 
were set up. The cameramen had been patiently waiting for the right shot, 
and now that it had come— Dorsey on his feet, hands in pockets, facing old 
Newt; Frank, arms folded across his lap, gazing impassively upon the jurors; 
reporters nibbling pencils; spectators leaning in— they opened their lenses. 
The resulting images would be stripped across the next day's front pages. 
These pictures, however, did more than freeze a moment. Their taking 
marked the end of the trial's first-day fanfare and the onset of genuine hos- 
tilities. Prior to this disruption, Dorsey had been merely setting the stage. 
Yes, Fannie Coleman and George Epps had caused a stir, but aside from 
enabling the solicitor to establish the contents of Mary's last meal and the 
approximate time she'd left for town, they'd failed to contribute anything 
substantive. From this point forth, the state's deponents would be capable 
of delivering testimony that if not refuted could spell doom for Leo Frank. 

While little of what Newt Lee had to say was actually new, he would 
make a forceful witness. In part, his tale simply continued to fascinate. 
Of equal importance, however, was his attitude. At once humble yet revel- 
ing in the fact that as he sat on the stand in his store-bought suit, "dem 
big lawyers," as the Georgian phrased it, "was pay[ing] him respecks," the 
Negro cut an engaging figure, one Hugh Dorsey knew exactly how to exploit. 

After quickly establishing Lee's presence at the factory at 4:00 on the 
afternoon of the crime and the fact that on the previous day, Frank had 
specifically instructed him to arrive at that hour, the solicitor went to work: 

"When you appeared at the factory to report on afternoons what did 
you generally do upon going up to the second floor where Mr. Frank's 
office is situated?" 

"Say, 'Howdy, Mr. Frank.' He usually called, 'Hello, Newt,' and if he 
wants anything he calls me into his office." 

"What did he do when you went to the second floor on Saturday, 
the 26th?" 

"He came to the door, rubbing his hands and saying he was sorry I had 
come so early. I told him I needed sleep and was sorry, too. He said go out 
in town and have a good time because I needed it." 

"Could you have slept in the factory?" 

"Yes sir. In the packing room." 



200 AND THE DEAD SHALL RISE 

Having completed one station of the cross, Dorsey directed Lee to the 
others. Regarding a topic he intended to make a major issue— the alleged 
skips in Lee's April 26 time slip— the solicitor's questions revealed that he 
suspected Frank of setting the Negro up from the outset: 

"What did Frank say when you came back?" 

"I went to the door and told him I was back, and he says, 'What time is 
it?' And I says, 'It lacks two minutes of 6:oo.' He says, 'Don't punch yet, 
there is a few worked today and I want to change the slip.' " 

"What did he do then?" 

"Put in a slip for the time clock. It took him twice as long this time than 
it did the other times I saw him fix it. He fumbled putting it in while I held 
the lever for him and I think he made some remark about he was not used 
to putting it in." 

From here, Dorsey danced Lee through the rest of the familiar narrative. 
Once again, Newt related how Frank had "jumped back frightened" upon 
meeting James M. Gantt on the sidewalk. Once again, he delivered the 
parable of the shoes, which began with Frank informing Gantt that his two 
pairs had been swept out and ended with Gantt, upon entering the plant, 
easily finding them. And once again, he told of Frank phoning at 7:00 to ask 
if things were all right, reasserting that the superintendent had never called 
before. 

At this juncture, Dorsey was ready to elicit Lee's account of the discov- 
ery of the body, but before introducing the topic, he wanted to make certain 
that the Negro and, more important, the jurors could visualize the crime 
scene, which was why he unveiled a diagram of the pencil factory drawn for 
him by the Georgian's Bert Green, hanging it on a wall to the judge's right 
where all concerned could see. 

An elaborate poster-sized production, the illustration was a showstop- 
per. And no wonder. During the celebrated Harry Thaw trial in 1907, 
Green, a New York Journal alumnus, had dazzled Manhattan with his depic- 
tions of murder victim Stanford White's apartment. For Dorsey, Green had 
created something just as provocative. The work's centerpiece was a cut- 
away rendering of the pencil factory picturing everything from Frank's 
office at the front of the structure to Mary Phagan's workstation at the rear 
to the now infamous elevator shaft, lobby scuttle hole and basement toilet 
from which Lee said he'd spied the body. Overlaying this architectural 
skeleton were three dotted lines in different colors, one charting dimen- 
sions, the other two— as a key at bottom left explained in no uncertain 
terms— representing paths "the accused" had traversed while committing 
the crime. Located at critical junctures along these black, red and green 



PROSECUTION 201 

route markings were scarlet pinpoints and Maltese crosses that, as the key 
also helpfully explained, denoted such areas of interest as where blood had 
been discovered or "where Girl was murdered on Office Floor." As a final 
touch, several close-up photographs of details like the sliding basement 
door and a previously unmentioned lock on a metal-room door had been 
attached to the sketch's borders, lending both gloss and credibility to the 
whole. 

The "Diagram of Phagan Murder— Venable Building" (as Green had 
labeled it) gave the state a potent piece of graphic firepower, and Dorsey 
wasted no time guiding Lee through it. The Negro indicated various sec- 
tions of the building he'd entered while making his rounds the Saturday 
night of the murder and reiterated that the gas jet in the basement had been 
burning no brighter than a "lightning bug." Proud of his analogy, Lee elabo- 
rated: "Has you ever seed one whut's been hit with a stick? Hit jest do 
shine. Well, dat was dat light. Hit just was shinin', and dat's all." Then, he 
pointed out where he'd found the victim. 

The factory tour complete, Dorsey steered Lee back to the topic of 
Frank. First, he brought up the matter of Newt's predawn effort to call his 
boss, eliciting the news that the telephone had rung eight minutes without 
anyone picking up. Next, he introduced Lee's Sunday-morning encounter 
with Frank, touching once more upon the time clock and securing testimony 
contradicting the superintendent's subsequent assessment that Newt's slip 
had been incorrectly punched: 

"When did you see Frank?" 

"I saw Mr. Frank Sunday morning at about 7:00 or 8:00. He was coming 
in the office." 

"How did he look at you?" 

"He looked down on the floor and never spoke to me. He dropped his 
head down this way." 

"Was any examination made of the time clock?" 

"Boots Rogers, Chief Lanford, Darley, Mr. Frank and I were there when 
they opened the clock. Mr. Frank opened the clock and said the punches 
were all right." 

"What did he mean by all right?" To this, Rosser objected, but Roan 
overruled him, allowing Lee to answer. 

"Meant that I hadn't missed any punches." 

Finally, Dorsey asked Lee about his much debated late-night meeting with 
Frank at the police lockup on April 29, giving the Negro the chance to 
repeat his version of the encounter, which ended, of course, with Frank, 
exasperated by Lee's denials of involvement, cautioning: "If you keep 



202 AND THE DEAD SHALL RISE 

that up, we will both go to hell." The solicitor could not have scripted a bet- 
ter exit line. 



Luther Rosser's attempt to undo the damage Lee had done to Frank would 
not be entirely ineffective. During the first hours of a cross-examination 
that would spill over into the next day, the lawyer managed to extract a 
good deal of helpful testimony. As in the course of Dorsey's examination, 
much of what Lee had to say— his acknowledgment, for instance, that 
Frank, having just fired Gantt, had an innocent reason to be flustered by the 
man's appearance at the factory on April 26— merely restated information 
he'd revealed at the inquest. But Rosser also succeeded in eliciting several 
new tidbits that boded well for his client. On the afternoon of the murder, 
Newt told the lawyer, anyone could have entered or exited "that great 
big old rambling" building without Frank knowing. Then there was Lee's 
admission that Frank, unlike someone with something to hide, had not 
instructed him to avoid the basement during his rounds. In fact, the Negro 
confided that had he gone into the cellar every half hour as Frank expected 
rather than only occasionally, he'd have found the body sooner. And then 
there was Lee's insistence that he saw nothing out of place in the metal 
room during his passes through it that night. 

Yet such successes notwithstanding, Rosser's approach to Lee seemed 
unproductively disputatious. He contested, for instance, the wording of his 
assertion that on the afternoon of the murder Frank had told him to go out 
and have "a good time," suggesting that what Frank had actually said was to 
go out and have "fun." Similarly, he took issue with his vivid lightning bug 
analogy, and during a particularly nasty string of questions— each beginning 
"How many times" and all implying that Newt had related his story so often 
he'd become confused— he came close to flat-out badgering the witness. In 
fact, when Lee at last cried, "I don't know, sir; there were so many blim- 
blamming at me so much that I couldn't keep count," he appeared to be 
accusing the lawyer of the same behavior. This, however, was just the start. 



Rosser's Tiiesday morning cross-examination of Lee would take only two 
hours, but in that brief span he would have at the Negro with a vengeance. 
The interrogation, a Georgian reporter would later note, "reminded me 
much of a big mastiff worrying and teasing a huge brown rat grimly bent 
eventually upon the rat's utter annihilation." Yet for all Rosser's forceful- 
ness, this second round of questioning would reveal more about the lawyer 
than Lee, begetting doubts regarding not just his approach to Negro wit- 
nesses but the defense's theory of the crime. 



PROSECUTION 203 

Everything about Rosser's treatment of Lee was intended to intimidate 
him. Rosser began by asking about the events leading up to the discovery of 
Mary Phagan's body, honing in on the disparity between the Negro's claim 
that the girl was lying on her back and the responding officers' contention 
that she was stomach down. This was hardly a topic dear to Lee's heart, 
for it reintroduced one of the circumstances that had originally cast suspi- 
cion on him, but he met it head-on, explaining that by "back" he'd meant 
"side." Newt and the police had apparently seen the same thing. Not having 
broached this matter to obtain information favorable to Lee, Rosser 
changed the subject. 

"You said yesterday that Mr. Frank jumped back when he met Mr. 
Gantt?" 

"Yes sir." 

Here, Rosser picked up a copy of the inquest transcript from the defense 
table and read aloud from Lee's testimony. The Negro had not mentioned 
Frank "jumping back." 

"Well, they got that wrong," Newt exclaimed when the recitation ended, 
sending a buzz through the courtroom but providing Rosser with an open- 
ing he couldn't resist. 

"That was a bad stenographer down there, wasn't he?" 

At this, Hugh Dorsey objected. Rosser, however, was in no mood to be 
corrected by his younger counterpart, snapping: "Of course, this gentleman 
on account of his age is entitled to lecture me." 

Judge Roan, seeking to appease both parties, ruled that as long as Rosser 
did not ask Lee to express opinions, he could question him about any incon- 
sistencies between his remarks to the coroner's jury and his trial testimony. 
Yet before Rosser could get going again, Dorsey's associate Frank Hooper 
set the pot back to boiling by requesting that Frank's lawyer specify the ses- 
sion of the inquest to which he was referring. The body had convened three 
times to discuss the Phagan murder. 

"I am always glad to accommodate these men whenever I can," Rosser 
responded airily. 

To which Hooper retorted: "You have got to accommodate me." 

Whereupon Rosser exploded, "No, I haven't. The man never was born 
whom I have got to accommodate." 

Despite Rosser's outburst, Judge Roan ordered him to comply with the 
state's request— not that this changed anything. 

Resuming his threatening stance before Lee, Rosser took up another dis- 
crepancy between the witness's direct testimony and his statements at the 
inquest. "You said yesterday," he began, "that when Frank put on the clock 
tape that Saturday it took twice as long as it did the other times you saw him 
do it. Why didn't you tell the coroner it took twice as long as it did before?" 



204 AN D TH E DEAD SHALL RISE 

"I did tell them it took longer." 

"Then all this record here is wrong?" Rosser asked incredulously, hold- 
ing up his copy of the transcript. 

"I can't help about those records," Newt shot back, sending yet another 
quiver through the gallery. 

If Luther Rosser had never met a white man he would accommodate, 
he'd surely never met a Negro he was going to let best him, and he wasted no 
time putting this one in his place, firing off a round of questions implying— 
no matter how irrelevantly —that Lee, prior to his arrest, had been shacked 
up with the woman who cooked for him. Though Newt denied the charge, 
his response was beside the point. The insinuation had been made. 

Satisfied that he had gotten to Lee, Rosser took up the topic that had 
increased early suspicions against him. 

"Were you down in the basement when the police found some notes?" 

"They said something about a book." 

"They read you something about the night watch doing it?" 

Before Newt could answer, Dorsey objected. His grounds were proce- 
dural. The murder notes had yet to be introduced into evidence and were 
thus off-limits. Ridiculous, Rosser replied, and began to state his reasoning, 
whereupon Dorsey asked the judge to withdraw the jury. Roan so ordered, 
paving the way for a series of arguments by Frank's lawyers that not only 
presented their rationale and explained Rosser's treatment of Lee but sug- 
gested they were blindly rolling the dice. 

After Dorsey produced the murder notes, Reuben Arnold introduced 
the defense's intentions: 

The defense expects to show that the two notes found in the basement 
of the National Pencil Company were very obscure notes and the police 
were trying to read them in the presence of Lee. 

They read this one: "He said he wood love me laid down played like the 
night witch did it but that long tall negro did buy his self." 

In an instant, Lee said, "That night witch means me." It showed famil- 
iarity with the notes. Isn't it strange that a negro so ignorant and dull that 
Mr. Rosser had to ask him a question ten times over could in a flash inter- 
pret this illegible scrawl? 

More explicitly, Luther Rosser added: 

We've got to commence somewhere and at some time to show the 
negro is a criminal and we might as well begin here as anywhere else. 



PROSECUTION 205 

In other words, the defense hoped to establish that Lee was involved in 
Mary Phagan's murder, specifically, that he was somehow connected to the 
murder notes. Though Rosser did not elaborate further, the Georgian 
reported that Frank's lawyers were laying "the groundwork for their theory 
that Jim Conley was the murderer of Mary Phagan and that Lee assisted in 
writing the notes." 

Not surprisingly, Hugh Dorsey scoffed at the defense's logic, but after 
pondering it all, Roan ruled that Rosser could continue, and the jury was 
returned. 

Considering the build-up, what now occurred was not only anticlimactic 
but revealed that the defense hadn't thought its gambit through. 

"When he said 'the night witch,' didn't you say, 'Boss, that's me?' " 
Rosser resumed. 

"No, sir," Newt answered. "I said, 'Boss, it looks like they are trying to lay 
it on me.' " 

This was the explanation Lee had advanced all along, and he enunciated 
it now with such certitude that after a couple of meaningless follow-ups, 
Rosser sat down, turning the witness back over to Dorsey. During the solic- 
itor's redirect examination, he quickly established that Newt had not met 
Jim Conley until a month after the murder, when both were in jail, thus 
undermining the defense's contention that the men were accomplices. That 
settled, Dorsey approached Bert Green's diagram of the pencil factory. He 
intended to lead Lee through it one more time. 

Before Dorsey could get started, however, Reuben Arnold was on his feet. 
"I object to that picture," he protested. "It is nothing but Mr. Dorsey's theory 
of the case. He's got all kinds of marks here." Why it had taken the defense so 
long to speak up about the diagram is unclear, but the protest fell on deaf 
ears. Roan ruled that since Dorsey was alluding to the work for reference 
purposes only, he could proceed, which he did with a flourish, using the 
umbrella Mary Phagan had been carrying April 26— the umbrella that had 
been discovered in the factory elevator shaft the next morning— as a pointer. 

Rosser, as well, got a final shot at Lee, but it seemed unduly harsh. 
Returning to a tack that had already failed once, he tried to show that the 
Negro had been quizzed so continuously that he'd become bewildered: 
"The policemen and detectives talked to you all the time, didn't they? They 
fired a pistol beside you, didn't they? My friend John Black and those fel- 
lows talked to you day and night, didn't they? They cussed you and they 
praised you, didn't they?" 

To all this, Lee allowed that the police had questioned him a good deal, 
but then, seizing a final chance to correct Rosser, he added: "Sir, they didn't 
praise me none." Shortly thereafter, he was excused. 



206 AND THE DEAD SHALL RISE 

As Lee descended, the gallery, noted one writer, "smiled an applause as 
gracious as bowing prima donna or stentorian tragedian ever received." 
Outside the courtroom, the Negro was asked if there was anything he 
wanted. Throat parched from the ordeal, he responded, "A chew of 'bacca, 
any kind," prompting an outpouring of quids and plugs. 

The consensus among the newspapers was that Lee's testimony— partic- 
ularly his account of Frank's nervousness on Saturday afternoon and the 
unexpected call later that night— had greatly aided the state. The bulk of 
the analysis, however, was devoted less to the substance of Newt's words 
than to the resiliency he had shown in the face of Rosser's blasts. Observed 
the Constitution: 

Seasoned courthouse officials and old reporters marveled at the way the 
negro held out against the crossfire of questions, all aimed at confusing him. 

Added the Journal: 

The negro appeared to hold his own remarkably well under the rigid cross- 
examination by Mr. Rosser. He argued with the attorney without hesitancy 
and took open issue with the inquest record whenever the attorney con- 
tended that it conflicted in minor ways with his testimony in court. 

Yet it was the Georgian's James B. Nevin who contributed the sharpest 
critique, commenting not just on Lee's grace under pressure but on the 
miscalculations at the core of Rosser's approach. Regarding the lawyer's 
attempts to tie the Negro to Mary Phagan's murder, Nevin wrote: 

As for the examination of Newt Lee by Mr. Rosser, it impressed me 
often as a mere shooting in the dark, hoping to hit something. 

Regarding the ferocity with which Rosser had gone after Lee, Nevin was 
even more dismayed: 

Time and again, Lee rallied and came back at his tormenter with telling 
effect— it is likely altogether that more than once the jury's sympathy went 
out to Lee in large measure while Rosser was grilling him— and to the 
darkey's occasional sallies and adroit sidesteps, the spectators in the court- 
room frequently responded readily with approving titters and guffaws. 

Nevin's most pointed remarks, however, were premonitory, casting an omi- 
nous light on Rosser's impending engagement with a "far more important 
sable figure," Jim Conley: 



PROSECUTION 207 

Will Conley be as nimble-witted as Lee was? 

Will he be able to withstand the onslaughts of Rosser and Arnold even 
approximately as well as Newt stood them? 
If he does 

At this juncture in the proceedings, Conley, of course, was still in the 
future. For Hugh Dorsey, the immediate task was to continue erecting the 
scaffolding of evidence that his star witness's testimony would cap, thus no 
sooner had Lee stepped down than he called Sergeant L. S. Dobbs. From 
Dobbs, the solicitor secured the familiar yet harrowing account of what the 
responding officers found in the factory basement. "The girl was lying on 
her face, the left side on the ground, the right side up. Her face was punc- 
tured, full of holes, and was swollen and black. The cord was around her 
neck, sunk into the flesh. Her tongue was protruding." After the sergeant 
identified the murder notes (which he had located), the cord and the strips 
of fabric that had in turn been looped over it, Dorsey asked him to demon- 
strate how the noose had been fashioned. On cue, Dobbs took the cord and 
tied it around the solicitor's outstretched arm. 

In his examination of Detective John Starnes, Dorsey elicited a recita- 
tion of his guarded Sunday phone conversation with Frank, a comparison 
(over Arnold's objection) of Frank's nervousness with Lee's calm that 
morning and a description of the red stains discovered on Monday in the 
metal department. All of this was also well known, but what followed was 
not. First, Dorsey asked Starnes to detail an experiment he'd conducted 
with the plant clock that revealed that someone intent upon fabricating a 
time slip implicating Lee could have done so in minutes. Next, Dorsey 
ascertained that cord of the sort used in the crime had often been left dan- 
gling from a nail near little Mary's knurling machine. Finally, he established 
that a previously unremarked-upon door opening into the second-floor 
chamber where he contended Frank committed the murder was usually 
kept bolted (hence the photograph of the lock tacked to Green's diagram), 
isolating the spot from the rest of the building. 

Though the defense did not stand idly by as the state advanced its points, 
Luther Rosser initially seemed at a loss on how to proceed. He started his 
cross-examination of Dobbs, for instance, by taking a last stab at pinning 
the crime on Lee. Considering Dobbs had supervised the test that indicated 
the night watchman's lantern was so smudged he could not have made out 
the body as he claimed and must have known more than he'd let on, the line 
of questioning was not inexplicable. It was, however, ill-advised. 

Once Rosser spit Lee from his craw, however, he began to counterattack 
effectively along several fronts, serving notice that he intended not only to 
tear apart the prosecution's case but to attach enough contradictory addi- 



208 AND THE DEAD SHALL RISE 

tions to transform anything left standing into an evidentiary scaffolding of 
his own— one from which he planned to hang Jim Conley. For starters, 
Rosser got Dobbs to mention the trail running the length of the basement 
over which Mary Phagan's body had apparently been dragged. This was 
hardly news. Everyone acknowledged that the body had been dragged— 
everyone, that is, except Conley, who in his last affidavit had sworn he'd car- 
ried it on his shoulder. While Rosser failed to persuade Dobbs to take the 
next step and agree to the proposition that the trail began beneath the scut- 
tle hole ladder (a proposition that had the sergeant confirmed it would have 
undermined the state's thesis that the body had been transported in the 
elevator), he didn't let this setback slow him down, moving quickly to intro- 
duce a number of other details Dorsey had ignored. First, he obtained 
the admission that the basement contained enough pads and pencils for the 
murder notes to have been written there. Then he secured the fact that the 
basement door had been crowbarred— again, a well-known particular, but 
for the state a vexing one, as Frank would have had no reason to take such 
action. Finally, he induced Dobbs to confess that he had casually examined 
Mary's underpants and consequently couldn't recall whether they had been 
slit with a knife or torn by hand. Why Rosser raised the distinction, he 
didn't say, intimating that all would be explained in time. 

With Starnes, Rosser took essentially the same tack, beginning by trying 
to determine if there were further facts concerning the crime scene that the 
state had slighted. For openers, he focused on the basement door, specifi- 
cally the metal staple that had been pulled from it. Had Starnes noticed 
that the staple was bent? Yes, the detective replied— which was exactly 
the answer Rosser wanted, suggesting, as it did, that whoever escaped out 
the back had used a considerable degree of force. Rosser then attacked the 
most damaging elements of Starnes's direct testimony. He started by assail- 
ing the detective's recollections of his Sunday-morning phone conversation 
with Frank, peppering him with questions designed to elicit discrepancies 
between his trial account and the version he'd given at the inquest. As 
he'd done when Rosser used the strategy against Lee, Dorsey frequently 
objected, but Judge Roan allowed the examination to continue, and while 
the differences it produced were inconsequential, Starnes eventually con- 
fessed: "I cannot give the words of the conversation between myself and 
Mr. Frank." This admission secured, Rosser tore into the rest of Starnes's 
story. Could the detective swear that the red spots discovered on the metal- 
department floor were blood? "I don't know that the splotches that I saw 
there were blood," Starnes conceded. Weren't cords like those located near 
Mary's workstation also to be found in the basement? Not exactly, Starnes 
responded. Those cords had been "cut up in pieces" shorter than the length 
used in the crime. Then how about elsewhere in the plant? Yes, Starnes 



PROSECUTION 209 

acknowledged, "there generally were pieces of cord in all parts of the build- 
ing." Finally, Rosser asked the detective to critique the responding officers' 
performance, earning the concession that they had overlooked such clues 
as Mary's hat. 

Rosser had at last begun to exhibit his vaunted prowess, yet as Dorsey 
briskly demonstrated when the witnesses were turned back over to him 
for redirect examination, the prosecution was not going to surrender any 
ground. 

During his second pass at Dobbs, Dorsey did his best to derail the idea 
that the body had found its way to the basement other than via the elevator. 
"A man couldn't get down that ladder with another person," Dobbs testi- 
fied. Then Dorsey mocked the notion that the basement door would have 
required any great strength to jimmy, eliciting the statement that the staple, 
far from being bent, was straight and smooth as if from frequent removals. 

During his second go at Starnes, Dorsey attempted to bolster the point 
that no matter the exact words, Frank's demeanor on the morning the body 
was discovered had been suspicious. This he did by glossing over the phone 
call and focusing on some of Frank's later behavior at the factory, specifi- 
cally his effort to joke with his coworker Darley regarding the fact that he 
wasn't wearing his typical brown suit but was instead clad in blue. ("Did 
anyone else joke that morning?" the solicitor inquired. "No," Starnes re- 
plied.) Then, in an attempt to combat the doubt generated by Starnes's 
inability to say whether the red spots discovered in the metal room were in 
fact blood, Dorsey produced several chunks of stained wooden floor, which 
the detective identified as the pieces chipped up the Monday after the mur- 
der. Having thereby established the evidence's tangibility, if not its chemical 
composition, Dorsey hurried on, ending his exam by using Starnes to intro- 
duce what would be a recurring theme— the alleged preferential treatment 
accorded Frank since his arrest. Dorsey was subtle here, merely asking the 
detective to recall how Frank, prior to his transfer to the Tower, escaped 
confinement in the headquarters lockup by securing a private room adja- 
cent to Chief Lanford's office. 

With the conclusion of Starnes's testimony late Hiesday, the pattern that 
would prevail for the next several days had been set. The battle would 
seethe back and forth as one side, then the other, fought to get across its 
theory of the crime. As in most circumstantial evidence cases, these theories 
rested on numerous, conflicting details, none more prone to dispute than 
those concerning the murder scene itself. Which was why the significance of 
a skirmish that took place once Starnes stepped down was immediately rec- 
ognizable. 

Afternoon shadows had begun to fall when Judge Roan asked opposing 
counsel if they had any business to conduct before he called the day's ses- 



210 AND THE DEAD SHALL RISE 

sion to an end. Yes, Dorsey replied, he wanted to enter some material into 
evidence. The murder notes, the length of cord, Mary's clothing— all were 
acceptable to the defense. A final item, however, was not. After examining 
Bert Green's factory diagram, Luther Rosser exclaimed: "Oh, no, this will 
never go into the evidence. If my brother wants to insist on it, why I ask that 
the jury be excused while we argue it." 

Once the jurors departed, Rosser resumed: "Your honor, this thing is not 
admissible." Then, turning to Dorsey, he added: "I didn't think you or my 
friend Hooper would try to put such a thing as this over me— seriously." Yet 
beneath his jocularity, Rosser was in deadly earnest. Here was a work that 
depicted Frank meeting Mary Phagan in his office, accompanying her to the 
metal room, then carrying her body to the basement in the elevator. Here, 
in other words, was a work that presented some of the case's most debat- 
able points as if they were proven facts, and on the heels of Rosser's protest, 
an outwardly chastened Dorsey conceded: "I realized that the plat was 
inadmissible." Accordingly, Roan ordered the solicitor to remove "anything 
argumentative" from the illustration, bringing the session to its close. 

Yet when court reconvened Wednesday morning, the issue had not 
been resolved. All printed matter had been excised from the diagram, but 
the Maltese crosses and the colored lines remained. Leaping to his feet, 
Reuben Arnold objected: "You don't have to label a horse to see it is a 
horse." In response, Dorsey acknowledged that the markings represented 
theories. But he then produced several precedents dug up for him by 
William Smith, who since the trial's first day had been posted in the solici- 
tor's law library. "As issues arose," Smith later recalled, "I would make a 
rapid examination of the authorities and send Mr. Dorsey a brief sum- 
mary." In this instance, Smith's research showed that Georgia judges had 
previously accepted similar works into evidence, and Roan ruled that 
"State's Exhibit A" could be admitted without further alteration. Conse- 
quently, the illustration would hang in the jurors' view until the state rested 
and abide in their minds for who knew how long. 



The trial's atmosphere would now grow more heated in every sense of 
the word— for, as by this juncture was apparent, the much heralded ozona- 
tors were a bust. On Tuesday, the temperature inside the courtroom had 
reached 91 degrees. Consequently, Wednesday found spectators falling 
back on an older but more reliable technology, the handheld fan, and 
reporters removed their suit jackets. To the request that attorneys be al- 
lowed to do likewise, Judge Roan humorously demurred. "Lawyers must 
wear coats," he said. "If I let them go in shirtsleeves, they'd feel so comfort- 
able this trial might never end." Roan did, however, order the windows 



PROSECUTION 211 

opened. The cooling effect of this action, if any, was offset by making the 
proceedings accessible to the multitudes, transforming a row of contractor's 
sheds lining the construction site across Hunter Street where Atlanta's new 
courthouse was rising into a spillover gallery. For the duration, a veritable 
knothole gang would colonize the sheds' rooftops, intensifying the sensa- 
tion for those within that the eyes of the city weighed palpably upon them. 

Stultifying though the courtroom was, Hugh Dorsey pressed resolutely 
ahead, beginning his examination of Wednesday's initial witness, Boots 
Rogers, by inquiring into the scene that had greeted him and Detective 
John Black in the parlor of the Franks' Georgia Avenue home the Sunday 
the body was discovered. Here, the solicitor was presenting some of the 
case's most ambiguous material, but he marched his witness through it as if 
nothing was in doubt, not just securing the expected account of Frank's 
anxiety but playing up new nuances, among them the possibility that the 
superintendent had been hungover. This Dorsey did merely by asking: 
"Was anything said about whisky?" "Yes," Rogers replied, first recalling 
Black's suggestion that Frank, far from needing the much discussed cup 
of coffee, actually needed a drink, then Lucille's response that her ailing 
father had downed the contents of the house's only bottle that very night. 
In the wake of Minola McKnight's affidavit, such recollections could only 
have sparked the most obvious inference. 

Dorsey next elicited Rogers's version of the morning's subsequent 
doings. First, there was the stop at the morgue: "Mr. Gheesling caught the 
face of the dead girl and turned it over towards me. I looked then to see if 
anybody followed me and I saw Mr. Frank step from outside of the door 
into what I thought was a closet." Then the visit to the factory. 

Of the many details regarding Frank's behavior that Sunday, none were 
potentially more damaging than those pertaining to the hour he spent with 
Rogers, Black and Assistant Superintendent N. V. Darley at the plant, 
and under Dorsey 's questioning, the witness ticked them off— the several 
requests for a cup of coffee, the comments regarding the connection 
between insurance regulations and the unlocked fuse box, and the difficulty 
starting the elevator. After securing an account of the tour of the basement, 
the solicitor directed Rogers to the most damaging detail of all— Newt 
Lee's time slip: 

"What did you do then?" 

"Mr. Frank says/I had better put in a new slip, hadn't I, Darley?' Darley 
told him yes, to put in a slip. Frank took his keys out, unlocked the door of 
the clock and lifted out the slip, looked at it and made the remark that the 
slip was punched correctly." 

"Where was Newt Lee?" 



212 AND THE DEAD SHALL RISE 

"Lee was right behind me, handcuffed." 

"Where was Darley?" 

"He was right there." 

"What happened next?" 

"Mr. Frank went to his office, brought out a new slip. He took out the 
old slip and wrote on it 'Removed 8:26.' " 

"What did he do with it?" 

"He folded it once and went into his office." 

"Did you see that slip?" 

"Yes, I glanced at it. The first punch was 6:01 and the second at 6:32. 
There did not appear to be any skip in it." 

Thus once again, Frank's ultimate assertion regarding Lee's punches was 
contradicted. After obtaining a last mention of the superintendent's anxiety 
that morning, Dorsey turned the witness over to the defense. 



Luther Rosser began his cross-examination by immediately establishing 
that Rogers had never seen Frank before the Sunday the body was discov- 
ered and couldn't know "whether his nervousness was natural to him or 
not." Then, after a few other questions designed to put a generally less sin- 
ister spin on Frank's actions that morning, the lawyer reintroduced the mat- 
ter that Dorsey had so insinuatingly broached: 

"Was anything said about a little drink doing you all good?" he asked. 

"Yes. Black said something about a drink. Mrs. Frank called to Mrs. 
Selig and she said there was no whisky in the house; that Mr. Selig had an 
acute attack of indigestion the night before and used it all." 

This was the reply Rosser had been seeking. "He had an attack of acute 
indigestion and drank up all the liquor," he repeated. "Well, I have those 
attacks occasionally myself." Coming from the mighty Rosser, such self- 
deprecation, no matter how calculated, was disarming, and the courtroom 
dissolved into laughter in which, to everyone's surprise, Leo Frank joined. 

FRANK LAUGHS FOR FIRST TIME DURING TRIAL WHEN HOME INCIDENT 

is told, boomed the Georgian's headline. And no wonder. Not only had 
Frank never previously laughed during the proceedings, save for the flicker 
of interest during the jury selection process, he hadn't exhibited any emo- 
tion at all. Observed the Georgian's Fuzzy Woodruff : "Arms akimbo, glasses 
firmly set, changing position seldom, Leo M. Frank sits through his trial 
with his thoughts in Kamchatka, Terra del Fuego, or the Antipodes, so far as 
the spectators in the courtroom can judge ... To those who believe Frank 



PROSECUTION 213 

guilty, his personality is not one to arouse pity." Yet now, Frank removed the 
mask just long enough to reveal that he had a sense of humor. 

From here, Rosser's interrogation of Rogers degenerated. Though he 
exacted the concession that there was a chance Frank had seen Mary Pha- 
gan's body at the morgue, and secured the fact that the factory elevator was 
"noisy," he expended most of his energy battling Dorsey for literal domi- 
nance of the courtroom. The fight started when Rosser positioned himself 
in such a manner that the solicitor could no longer see the witness. To 
Dorsey's request that he move, he replied: "Get a stick, Hugh, and keep me 
punched out of the way." With that, Rosser barreled ahead, but in his ela- 
tion at this successful bit of school-yard bullying, the lawyer ignored two 
vital points. First, he did nothing to counter Rogers's testimony regarding 
Lee's time slip. Second, he paid no heed to a statement the witness made 
near the end of his cross-examination concerning a most enigmatic clue: 

In the elevator shaft there was some excrement. When we went down on 
the elevator, the elevator mashed it. You could smell it all around. It 
looked like the ordinary healthy man's excrement . . . that was before the 
elevator came down. When the elevator came down afterwards it smashed 
it and then we smelled it. 



However upset Leo Frank may have been the Sunday Mary Phagan's 
remains were discovered, and however compelling the evidence located in 
the factory metal room was, Hugh Dorsey knew that to win a conviction, he 
would have to move beyond these concerns to the matter of motive. He had 
to prove that Frank had been acquainted with and attracted to little Mary. 
Which was why once Boots Rogers left the stand, Dorsey called Grace 
Hicks. 

Sixteen-year-old Grace, a cherub-cheeked girl in a white dress adorned 
at the neck and elbows by blue ribbon, had, of course, identified Mary Pha- 
gan's body, and Dorsey opened his examination by gently returning her to 
that horrific moment. Yet after posing just a couple of questions regarding 
the topic, he dropped it. For the task at hand, the witness's recollections of 
Mary dead were less important than those of her alive: 

"Was she pretty?" 

"Yes. She was fair-skinned, had light hair, blue eyes, and was well devel- 
oped for her age." 

"Where did you work?" 

"In the metal room." 

"How often was Mary at the factory?" 



214 AND THE DEAD SHALL RISE 

"Nearly every day." 

"Where was Mary's workplace?" 

"Right next to the dressing room." 

Here, Dorsey briefly abandoned this line of inquiry to introduce the fact 
that the Monday following the murder, Grace had seen the red spots on the 
metal-department floor near the dressing room. Then he resumed: 

"A person going from the office back to the rear of the second floor 
would have had to pass the dressing room, the place near where Mary Pha- 
gan worked, wouldn't they?" 

"Yes." 

"Did Frank pass there every day?" 

"Almost every day. He would come back two or three times a day to see 
how the work was going on." 

"When was Mary at the factory last to work?" 

"The Monday before April 26." 

"Why didn't she work that week?" 

"The metal hadn't come." 

"Where was the metal kept?" 

"In a little closet under the stairway." 

"When was the regular payday?" 

"Saturday at 12." 

"Was anyone paid off Saturday, April 26?" 

"Most of them were paid off the Friday night before, as Saturday was a 
holiday." 

As to why Mary Phagan hadn't been among those who'd received their 
wages on Friday, Dorsey didn't ask, preferring to conclude on this allusive 
note. 



No matter how much Grace Hicks's testimony appeared to have advanced 
the state's case, by putting the girl on the stand Dorsey had provided the 
defense with an opportunity, and once Rosser took the floor, he wasted no 
time initiating what would prove to be a devastating cross-examination: 

"You worked at the factory a year?" 

"I worked there five years. Mary worked there a year." 

"In those five years, how many times did you speak to Mr. Frank?" 

"Three times." 

"How many times did you see him speak to Mary Phagan?" 



PROSECUTION 215 

"I never saw Mr. Frank speak to Mary Phagan or Mary Phagan speak to 
Mr. Frank." 

"Did he speak to the girls when he came through the metal room?" 

"No. He just went through and looked around." 

"What did he say when he spoke to you?" 

"He was showing a man around and I was laying on my arm mighty 
near asleep and he says: 'You can run this machine asleep, can't you?' And 
I said, 'Yes, sir.' The other times he spoke to me on the street." 

Had Rosser gone no further, he already would have exposed Dorsey's 
attempt to use Grace to suggest a link between Frank and Mary Phagan 
for the flimsy enterprise that it was. But the big man was just limbering 
up. In Grace, he had at his disposal a state's witness who could do more 
damage to the state than to the defense— and he intended to see that she 
did. First, there were those worrisome red stains on the metal room floor. 
While Rosser did not ask about them per se, he did ask about the floor, 
eliciting the admission that not only was it "awful dirty" and not only did 
the "white stuff used in the department get all over it but that the polish- 
ing room, where paint was stored, happened to be nearby. Conceded 
Grace: "I have seen drops of paint on the floor. I have seen it leading from 
the door straight across from the dressing room out to the cooler where the 
women come out to get water. The floor all over the factory is dirty and 
greasy. And after two or three days, you can hardly tell what is on the 
floor." 

The prosecution's blood evidence further undermined, Rosser then used 
Grace to strike a preemptive blow at that other avidly awaited exhibit of 
scientific proof— the strands of hair discovered on a metal-department 
lathe the Monday following the murder. Dorsey, of course, was reputedly 
ready to argue that the hair had come from Mary Phagan's head, but after 
what this witness would testify, such a theory was going to be more difficult to 
advance. 

"Miss Grace," Rosser began, "there is a place up there where you comb 
your hair, isn't there?" 

"Yes." 

"Where is it?" 

"Sometimes, we sit over at the machine and comb our hair and some- 
times when I want to curl my hair with a poker or anything I go over there 
to the table right by the window and light the gas and curl my hair." 

"How far from the machine where you sit and comb your hair is the 
lathe where the strands of hair were found?" 

"About fifteen feet." 



2l6 AND THE DEAD SHALL RISE 

"Was there another girl who sat near Mary who had hair like hers?" 
"Yes, Magnolia Kennedy sat on one side of her and I sat on the other. 
Magnolia's hair was sandy, too." 

During his redirect, Dorsey salvaged what he could, but regardless of 
the fact that Grace told him she'd never seen any red paint in the metal 
room, and despite her admission that she still worked at the factory —which 
implied that she was beholden to Frank— the damage was done. Headlines 
told the tale. Cried the Georgian: 

GIRL'S STORY HELPS FRANK 

Echoed the Journal, albeit more soberly: 

Defense to Claim Strands of Hair Found 
Were Not Mary Phagan's 

Only the Constitution abstained. By the time the morning sheet's Thursday 
editions went to press, Grace's story would be subsumed by far more dra- 
matic news. 



The state's next witness, Detective John Black, was highly anticipated. 
From the beginning, he'd been involved in every aspect of the investigation, 
and Dorsey intended to use him both to firm up the foundation of his case 
and to contribute a few new pieces. 

Unlike the other officers summoned the morning Mary Phagan's body 
was discovered, Black testified, he'd already been acquainted with Leo 
Frank. Prior to that Sunday, he averred, he'd twice met the superintendent 
when visiting the pencil factory on routine police business. On neither oc- 
casion, he added at Dorsey's behest, had Frank betrayed a particularly 
excitable nature. 

Black's psychologizing prompted an objection from the defense, and 
Judge Roan admonished the solicitor to stick to the facts. But this reproof 
notwithstanding, Dorsey had enhanced the detective's credibility on a vital 
issue, paving the way for the assault that now followed: 

"When you saw Frank the morning of April 27 did he seem nervous?" 
"Yes." 
"Why?" 

"Because he had some considerable trouble putting on a collar. It 
seemed that he couldn't tie his necktie." 



PROSECUTION 217 

"What did he say about going to the factory?" 

"He kept on insisting on getting a cup of coffee, and I finally told him 
that I had been up until one o'clock the night before and had then been 
aroused at four o'clock in the morning and hadn't had any coffee or break- 
fast, either. I told him we'd better go to the factory and get that over with." 

Which, of course, was Dorsey 's destination, too. After a nod to the events 
at the morgue (Black, too, maintained that Frank couldn't have seen the 
victim's face), he introduced the subject of the factory tour, dwelling on the 
incident to which he'd so consistently returned: 

"Did you see him go to the clock?" 

"Yes. He looked at it, made an examination, and said it had been 
punched correctly up until 2:30 a.m." 

"Did Frank state at any time that the clock was inaccurate?" 

"He said on Tbesday that the clock had been passed three times." 

"Did Frank produce a time slip at that time?" 

"Yes, a slip which he gave to Chief Lanford on Monday." 

"What became of the slip he had Sunday?" 

"He carried it into his office on Sunday morning." 

"Who was present Sunday morning when he stated the slip had been 
punched regularly?" 

"Detective Starnes, Chief Lanford, Newt Lee, Boots Rogers and 
myself." 

"When did you first hear Frank state the slip was incorrect?" 

"I cannot swear. It was Tuesday or Monday, one or the other." 

"Who was being held at that time under suspicion of the crime?" 

"Newt Lee." 

"Frank was not then under arrest?" 

"No." 

The solicitor's intimation couldn't have been more pointed. 

Dorsey was not finished with Black. As the detective's testimony regard- 
ing Lee's time slip brought home, what made him so valuable to the state 
was his ability to discuss the developments that over an interval of days had 
increased suspicion of Frank, and it was with the intention of putting more 
such material before the jury that the solicitor now inquired if Frank had 
engaged counsel prior to being taken into custody. Despite the de rigueur 
defense objection, Judge Roan sustained Dorsey, and the detective replied: 
"When Mr. Frank was down at the police station on Monday morning, Mr. 
Rosser and Mr. Haas were there. About 8 or 8:30 Monday morning Mr. 
Rosser came to police headquarters." This circumstance thus pegged to a 



2l8 AND THE DEAD SHALL RISE 

period twenty-four hours before Frank's arrest, the solicitor delved into the 
role the lawyers had initially played: 

"Did you hear Haas make a statement in Frank's presence?" 

"Yes. Haas demanded of Chief Lanford that the officers accompany Mr. 

Frank out to his residence and search his residence." 

"What were Haas's grounds for making such a demand?" 

"He stated that he was Mr. Frank's attorney and demanded to show 

that there was nothing left undone." 
"What time was that?" 
"About 11:30." 

That Dorsey was contemplating suggesting a link between the visit to 
Frank's home and the subsequent visit to Lee's shack (where the police 
found the infamous bloody shirt), there can be no doubt, but significantly, 
he did not at this juncture go further. Instead, he broached several other 
matters, among them the arrest of James M. Gantt, eliciting the statement 
that the ex-bookkeeper was not apprehended until Frank fingered him. 
Finally, he asked if Frank's bearing had altered from day to day. Replied 
Black: "After his release Monday, he seemed very jovial. OnTUesday he was 
sullen." Something amiss thereby implied, the solicitor sat down. 



Whatever good Black seemed to have done the state's case, within thirty 
seconds Luther Rosser was ripping away the integument of expertise and 
probity in which the man cloaked himself and exposing the sinew of incom- 
petence and deceit that many believed constituted the inner fiber of the 
entire Atlanta Police Department: 

"You didn't release Mr. Frank," Rosser began innocently enough, "until 
the word was given from the chief of detectives, did you?" 
"I suppose not." 

"Do you mean anything by the word release?" 
"I spoke before I thought when I uttered it." 
"Wasn't his detainment equivalent to arrest?" 
"I can't say so." 

"Then you retract a thing you said under oath?" 
"Yes, I retract the word release." 

Just that easily, Rosser had suggested why Frank had retained counsel on 
Monday. Moreover, he'd bewildered Black. This, though, was merely the 
overture: 



PROSECUTION 219 

"Wasn't it 10:00 before I got to the station?" Rosser now asked, know- 
ing full well he had indeed arrived at that hour. 
"No . . . you got there between 8:30 and 8:00." 
"Will you swear it?" 
"I won't swear it ... I don't know." 

And just that easily, Rosser had suggested that Black's memory was unreli- 
able. This, though, was still merely the overture: 

"Who was present when you talked to Frank on the time previous to 
Sunday?" Rosser now inquired, referring to Black's professed earlier con- 
versations with the superintendent. 

"I don't remember." 

"As a matter of fact, you can't swear truthfully that you spoke to him at 
all, can you?" 

"Not positively." 

With that, the dam burst. What time had Detective Starnes phoned Frank 
on Sunday morning? Black didn't know. What time had he arrived at the 
Franks' home? Black didn't know. What kind of tie had Frank experienced 
such difficulty with? Black didn't know. Then: 

"Hurry and scurry is an enemy to memory, isn't it?" 

"Yes." 

Black was collapsing. "The detective's features flushed crimson," noted 
the Georgian. "He mopped his face which was running with perspiration. 
Then he held his handkerchief up by two of its corners to dry in the breeze 
from an electric fan." Still, Rosser had at him, particularly regarding the evi- 
dence relating to the crime scene. First, he took up the purported blood- 
stains: 

"You went through the factory with Frank?" 

"Yes." 

"Who else went?" 

"I don't know— several people." 

"And none of you saw the splotch said to be blood?" 

"No, sir." 

"How many of you went over the building?" 

"I don't know exactly." 

"Perhaps thirty people?" 

"I don't know." 



220 AND THE DEAD SHALL RISE 

"This large horde made up of officers and curiosity seekers went over 
the factory and nobody saw these alleged blood spots?" 

"No, sir." 

"How long was the factory open on Sunday morning— till about 12:00, 
was it not?" 

"I don't know." 

"How many times did you go to the factory that morning?" 

"Twice." 

"Detective Starnes went over the factory with you, did he not?" 

"Yes." 

"Campbell and Beavers, too?" 

"I don't know about Beavers, but Chief Lanford did." 

"And no blood spots were discovered that day?" 

"Not so far as I know." 

Then Rosser addressed, at long last, the matter of Lee's time slip: 

"You saw Frank at the clock?" 

"Yes." 

"He opened the clock and took out a slip?" 

"Yes." 

"When did Frank turn over this slip that he took out of the clock?" 

"I don't know." 

"Didn't you tell Mr. Dorsey a few minutes ago that he turned over the 
slip on Monday morning?" 

"I don't remember." 

"Look here, Black. Is your memory so bad you can't remember what 
you told Dorsey twenty or thirty minutes ago? And yet you attempt here 
to state the words of conversations that occurred more than three months 
ago?" 

There was no answer. 

Having tarnished Black's credibility concerning the matters to which he 
had testified, Rosser would now tackle the matters to which he had not tes- 
tified. The hope here was to steal a march on Dorsey, who by earlier letting 
Black off the hook regarding his search of Frank's home and all that fol- 
lowed had unwittingly opened himself to attack. 

Rosser sprang his offensive by asking Black if he'd been at headquarters 
Monday when Frank disrobed. Not surprisingly, Dorsey objected to this, 
but Judge Roan, noting that the solicitor had flirted with the subject during 
his direct examination, allowed the question, and simple as that, Rosser had 
co-opted a key portion of the state's case. Now Frank's counsel would 



PROSECUTION 221 

determine how the murky series of occurrences that had ended in the dis- 
covery of the bloody shirt at Lee's would be presented to the jury, and he 
started by asking Black if the station house striptease had inspired the trip 
to Frank's home. Yes, the detective replied, adding: "We went out there and 
examined the clothes he'd worn the week before and the laundry, too. Mr. 
Frank went with us and showed us the dirty linen." Rosser then grilled 
Black about a later outing: 

"You also went to Lee's house?" 

"Yes." 

"What did you find?" 

"A bloody shirt." 

"Where is it?" 

"Mr. Dorsey has it." 

At this, Rosser asked the solicitor to produce the shirt, which he was obliged 
to do, handing it to his adversary, who then displayed it to the witness: 

"Is that the shirt, Mr. Black?" 
"Yes, sir." 

"What time did you find it?" 
"Tuesday morning, about 9:00." 

The Hugh Dorsey who now undertook Black's redirect examination was 
not the same man who'd heretofore so coolly withstood Rosser's taunts. 
Visibly agitated, he tried to introduce a line of inquiry that would suggest 
Frank had inspired the search of Lee's home, but when Rosser sharply 
objected, he looked to Roan for help, exclaiming: 

Our contention is that this shirt was a plant and Frank's request was a ruse 
to get the police to search his house and then Newt Lee's house and thus 
throw suspicion on the negro. 

As soon as these words left Dorsey's mouth, the Georgian's James B. Nevin 
glanced at Rosser and, as he put it, "saw what I expected to see— a momen- 
tary flicker of a smile about the lips and eyes." 

Dorsey, however, was oblivious, and when Roan ruled that he could con- 
tinue, he secured a couple of statements that seemed to confirm his claim that 
Frank had engineered the expedition to Lee's. To wit: Black swore that Frank 
had not only informed him that he believed the night watchman had failed to 
divulge everything he knew about the murder but that the missed punches 
showed he would have had "an hour to have gone out to his house and back." 



222 AND THE DEAD SHALL RISE 

On the surface, Black's testimony appeared to buttress Dorsey's thesis, 
but the reason for Rosser's smile— and the likely reason the solicitor had 
avoided getting into this subject at the start— became plain once Dorsey 
asked the detective when Frank had said such things. Black's answer 
couldn't have been more disastrous: "I don't remember whether that was 
before or after I went out to Lee's house and found the shirt." 

Realizing what had just occurred, Dorsey blanched. Under his question- 
ing, his witness had undermined the surmise atop which a part of his evi- 
dentiary construct stood, suggesting that the links between anything Frank 
had said or done and the search of Lee's house were tenuous at best. And 
while the solicitor would attempt to recover, eventually exacting Black's 
assurance that Frank's remarks regarding the missed punches had preceded 
the trip to Lee's, such an admission was of little help. Dorsey had suffered a 
self-inflicted wound, and all he could do was cede the floor. 



For the first time since the trial began, Luther Rosser held the advantage, 
and he used it. "Don't you know, Black," he began his last assault, "that as a 
matter of fact, that shirt was found before Frank ever said anything to you 
about the misses in that time tape?" 

The detective opened his mouth, but no answer came forth. 

"Don't you know it?" Rosser persisted. 

Still no answer. 

Whereupon Rosser extracted his pocket watch and held it before the 
witness. After an excruciating minute or so, the judge attempted to inter- 
vene, but Rosser urged: "Give him time to answer, your honor." 

A few seconds later, Black confided: "I don't remember." Then he bale- 
fully added: "I don't like to admit it, but I am so crossed up and worried that 
I don't know where I am at." 

At this, Rosser snorted, "Come down." 

Once again, headlines told the tale. Declared the Georgian: 

Collapse of Testimony of Black Great Aid to Defense 

Seconded the Journal: 

Detective John Black "Goes to Pieces" 

But it was Dorsey's supporters at the Constitution who played the story 
hardest. Beneath the page-one banner defense riddles john black's 
testimony, the morning paper reported: 



PROSECUTION 223 

When Wednesday's session of the Leo M. Frank trial had come to a 
close, the friends of the accused were filled with high hopes for his acquit- 
tal. They were nothing short of jubilant . . . 

The feeling was based on the fact that the testimony of John Black . . . 
who had worked up a large share of the evidence against Frank, fell to the 
ground . . . 

Time and again, Black contradicted himself . . . 

Solicitor Dorsey had stated that he expected to show that Black had 
gone to Lee's house only after Frank had informed him that several punches 
were missing from the time slip taken from the register clock . . . that after 
Frank's house had been searched for incriminating evidence at the sugges- 
tion of Herbert Haas, that Frank sought to have Lee's house searched and 
that the bloody shirt was really a "plant." 

Black's answers failed to bear out the contention of the solicitor. 

The verdict was unanimous. As the Georgian's James B. Nevin observed: 

There is a feeling, growing more fixed every day, I think, that the State, 
if it hopes to win, must set up something more than it has yet made public! 

If the State has some big cards up its sleeve, if it is prepared to surprise 
the defense . . . then the case yet is in its infancy and the real charge against 
Frank still is to be made out. 

If the State has no unrevealed evidence and is NOT prepared to strike 
the defense heavy and unanticipated blows, it is but the simple and honest 
truth to say here and now that the feeling, vague and elusive enough, but 
unmistakably there, [is] that acquittal eventually will come to Frank . . . 

The Black debacle, according to still another reporter, "was enough to 
stun any man," but Hugh Dorsey righted himself immediately. He started 
the process in the waning minutes of Wednesday's session by calling James 
M. Gantt, the dismissed pencil company bookkeeper. Predictably, Dorsey 
asked Gantt to reiterate his account of Frank's nervous reaction to their 
encounter outside the factory the afternoon of the murder. Then he guided 
his witness to new territory: 

"Did you know Mary Phagan?" 

"Yes, I knew her when she was a little girl." 

"Did Leo M. Frank know Mary Phagan?" 

"Yes." 

"How do you know that?" 

"One day she had been in the office talking to me about a mistake in her 



224 AND THE DEAD SHALL RISE 

time. When she left, Mr. Frank turned to me and said, 'You seem to know 
Mary pretty well.' " 

Gantt's assertion, of course, contradicted Frank's denials that he'd been 
acquainted with the girl, and Dorsey followed up with a series of inquiries 
suggesting that Frank had manufactured the bookkeeper's $2 payroll short- 
age to get rid of someone he regarded as an impediment to his lecherous 
designs. During cross-examination, Luther Rosser sought to discredit Gantt 
by compelling him to admit he'd told the inquest he had never seen Frank 
with little Mary and was unaware he knew her. Yet such concessions, dam- 
aging though they were, did not negate Gantt's story. Dorsey had deftly 
reintroduced the idea that Frank had been eyeing his victim all along, 
checking the defense's momentum. 

Thursday morning, Dorsey began building some momentum of his own. 
Pinkerton agent Harry Scott, though serving at Frank's behest, had helped 
John Black collect much of the prosecution evidence, and after taking the 
stand, he dropped a bombshell, reversing himself regarding a crucial com- 
ment Frank made during their initial conversation. Heretofore, in both his 
first report and at the inquest, Scott had maintained Frank stated that after 
paying Mary Phagan on April 26, he'd answered her parting query as to 
whether a metal shipment had arrived with an unequivocal "no." Now the 
detective proclaimed: "He replied that he didn't know." 

This shocker, implying that Frank had responded ambiguously to little 
Mary in an effort to lure her to the metal room, contributed mightily to the 
state's theory of the crime. Yet as Dorsey realized, the defense could chalk 
up anything Scott said to his being in league with the authorities; thus 
before he went further, he endeavored to persuade the jury that the Pinker- 
ton agent's true allegiances were more complex. The solicitor did so by pos- 
ing some seemingly straightforward inquiries regarding Frank's mood 
during the pair's inaugural meeting and a bid he supposedly made to direct 
suspicion at Gantt. When Scott, in turn, professed ignorance of such mat- 
ters, an outwardly exasperated Dorsey looked to Judge Roan: "Your honor, 
I have been misinformed as to what the witness would testify. I have 
been misled." Toward that end, the solicitor requested the opportunity to 
"refresh" Scott's memory. 

Immediately, Rosser sensed something wrong. "Questions like these 
grate on my ears like the false notes from a piano," he roared, adding that 
unless the solicitor intended to impeach Scott, he was on shaky ground. To 
this, Dorsey responded that impeachment was the furthest thing from his 
mind, insisting that he merely wanted to hold Scott to his word. Then he 
brazenly stated his case: "Your honor, if there ever was a time when a wit- 



PROSECUTION 225 

ness should be led, it is now with this detective who was hired by the pencil 
factory and has been working with the attorneys for the defense. When I 
talked with him and he told me things and now he testifies differently, I 
have a right to lead him." 

After consulting precedents, Roan ruled that while Dorsey could not 
lead the witness, he could reacquaint him with specific points of his story. 
The upshot: Scott was soon recalling that at the meeting in question, Frank 
took deep breaths and his eyes were "large and piercing." Moreover, he 
added that Frank laid "special stress" on Gantt's attentions to Mary Phagan. 

And so by dint of pettifoggery, Dorsey managed to have it both ways 
with Scott, distancing him from the police and tying him to Frank even as he 
exacted more damaging testimony. Nonetheless, the solicitor still wasn't 
satisfied. In a final attempt to insulate Scott, he asked: "Was anything said 
by one of the attorneys for Frank about you suppressing evidence?" 

Here again, Rosser objected, but while Roan sustained him, he allowed 
Dorsey to rephrase the question, and soon Scott was revealing: "The first 
week in May, Superintendent Pierce [Scott's boss] and I went to Mr. Her- 
bert Haas's office . . . and had a conference with him as to the Pinkerton 
Agency's position in the matter. Mr. Haas stated that he would rather we 
would submit our reports to him before we turned [them] over to the 
police. We told him we would withdraw before we would adopt any practice 
of that sort." 

With that, Dorsey managed to have it a third way with Scott, making it 
appear that whatever his connections to 175 Decatur Street, they were 
rooted in the interest of justice; and on that note, he returned the agent to 
the subject of the investigation itself, eliciting his account of Frank's station 
house encounter with Newt Lee: "Frank hung his head the entire time the 
negro was talking to him, and finally in about thirty seconds, he said, 'Well, 
they have got me too.' Mr. Frank was extremely nervous at that time. He 
was very squirmy in his chair, crossing one leg after the other and didn't 
know where to put his hands." 

Dorsey could not have staged a stronger comeback, and after securing 
Scott's profession that in the early days of the probe he'd conducted a 
"thorough search" of the factory lobby and "found no pay envelope or 
bludgeon" and, more vitally, his assertion that a week after the murder, 
Frank told him he'd been at his office desk "every minute" between 12:00 
and 12:30 the afternoon of April 26, he returned to his chair. 



Luther Rosser opened his cross-examination of Scott with a flurry, estab- 
lishing that while Herbert Haas may have requested advance copies of the 



226 AND THE DEAD SHALL RISE 

agent's reports, he'd also indicated "he wanted the murderer caught regard- 
less of who it was." 

Yet from this point forth, Rosser would struggle, for as the Georgian 
noted: "Scott refused to be cowed." The Pinkerton agent easily evaded 
Rosser's thrusts. Why hadn't he reported Frank's attempt to incriminate 
Gantt? "Because the day I made this report Gantt was released from police 
headquarters and was regarded as no longer a suspect." Why hadn't he told 
the inquest of Frank's anxious station house interview with Lee? "You 
should remember, Mr. Rosser, that I was answering only questions that 
were asked me by the coroner, and that he didn't draw out and cross ques- 
tion me." 

Similarly, Scott was unflappable in the face of Rosser's stabs at portray- 
ing him as a police toady: 

"Your agency works with the police, does it not?" 
"Yes, on criminal investigations." 

"You always hook up with the police and go down the road with them, 
don't you?" 

"We work in harmony with the police." 

The only time Rosser again laid a glove on Scott came after he reminded 
the detective that another factory official— Assistant Superintendent Dar- 
ley— had accompanied Frank to their all-important first get-together. Con- 
fronted with this fact, Scott was forced to confess that he didn't know which 
man had brought Gantt's name into play. "I am not sure whether I got the 
statement about Mary Phagan being familiar with Gantt from Mr. Darley 
or Mr. Frank," he admitted. 

That, however, was that. Though Rosser had Scott dead to rights when it 
came to his last and most significant line of questioning, he couldn't make 
anything stick: 

"Mr. Scott, you say now that Mr. Frank told you when the little girl 
asked him if the metal had come, Mr. Frank replied, 'I don't know'?" 

"Yes." 

"Didn't you swear before the coroner that he said, 'No'?" 

"Yes. I have said about half and half all the time." 

"Didn't you say in a report to me that he said, 'No'?" 

"Yes." 

"Did you mean I don't know? Don't you know that the meanings of the 
words are quite different?" 

"It was just a grammatical error. I now swear positively he said, 'I don't 
know.' " 



PROSECUTION 227 

In the face of such resolve, there was nothing Rosser could do but sit down. 
As the Journal flatly concluded: "Scott proved a difficult witness for Mr. 
Rosser." 



The 14-year-old girl who replaced Harry Scott on the stand made a fetching 
picture. Blond hair piled beneath a broad-brimmed hat, cheeks flushed but 
expression composed, tan cotton dress cut well above the ankles, Monteen 
Stover was yet another pretty factory girl. She was also one of the state's 
most important witnesses. If the story she swore to just a week after the 
murder stood up, she could not only establish the prosecution's time line 
but undermine Frank's claim that he'd been in his office "every minute" be- 
tween 12:00 and 12:30 the afternoon of April 26. Dorsey promptly steered 
her to the issue at hand: 

"Did you go to the factory on the Saturday Mary Phagan was killed?" 

"Yes, sir." 

"What time?" 

"12:05 o'clock." 

"How long did you stay?" 

"Five minutes." 

"What did you go for?" 

"To get my pay." 

"What floor did you go to?" 

"The second." 

"To where?" 

"To Mr. Frank's office." 

"Did you see Mr. Frank?" 

"No." 

"Did you look at the clock when you went in?" 

"Yes. I walked up to it. It was 12:05." 

The implications here couldn't have been blunter, and after securing the 
seemingly meaningless fact that the girl wore tennis shoes on April 26 and 
the recollection that the double doors opening into the metal room had 
been ominously shut that day, Dorsey turned her over to the defense. 

Rosser did what he could with Monteen. Perhaps, he suggested, she'd 
failed to enter the inner chamber where Frank usually worked, stopping 
instead in the anteroom. No, she replied, "I went through the first office into 
the second." All right then, Rosser rejoined, what did the furniture look 
like? The desks? The wardrobe? The girl couldn't recall, but as opposed to 
what her interrogator was trying to imply, this inability was not owing to 



228 AND THE DEAD SHALL RISE 

heedlessness on her part. As she explained: "I was looking for a person 
and didn't notice any of these objects." Monteen was not going to be con- 
tradicted, and while Rosser did exact the concession that the metal- 
department doors were often shut on off days, he again had little choice but 
to retire. 



Following the Stover girl was the 18-year-old factory machinist R. P. Bar- 
rett. One of those young men who seem both dull and cunning, Barrett had 
lived a hard life and, in turn, had been hardened. From Dorsey's vantage, 
however, Barrett was the salt of the earth, for he had discovered the evi- 
dence upon which the state's theory of where the murder took place rested. 
The red stain on the metal room floor, the white stuff smeared atop it— the 
solicitor swiftly secured the particulars. Then, rather than ask Barrett to 
relate in words how he'd located the accompanying hair samples, Dorsey 
handed him pencil and pad and asked him to draw what he'd seen. The 
resulting sketch depicted the strands the machinist said had been twined 
around his lathe handle, and on its strength, the solicitor took a crack at 
connecting those strands to Mary Phagan: 

"Did anyone else see the hair?" 

"Yes," Barrett responded. 

"Was Magnolia Kennedy there?" 

"Yes." 

"Did she identify the hair?" 

Before Barrett could reply, Rosser exploded: "It would be only hearsay. 
Only the God of the universe could identify the hair." Roan sustained the 
objection, thus the jurors wouldn't hear Magnolia's widely reported asser- 
tion that the hair had come from little Mary's head. Not that Dorsey 
allowed the setback to slow him down. Betraying no dissatisfaction, he 
obtained Barrett's assurance that neither the red stain— which the machin- 
ist insisted was blood— nor the hair had been present at quitting time the 
Friday before the murder. Then he introduced a new and potentially devas- 
tating piece of evidence— a scrap of pay envelope that Barrett claimed he'd 
spotted beneath Mary Phagan's machine several days after the killing. 
Printed atop the scrap was a partially visible "p" or "g." As Dorsey had 
known it would, "State's Exhibit U" rocked the courtroom, providing him 
with the perfect ending point. 

Once again, Rosser gamely rose to his feet, and while he failed to get 
Barrett to back down regarding the red stain ("I could tell it was blood") or 
the hair, he did persuade him to concede that the envelope scrap could have 



PROSECUTION 229 

belonged to anyone. "There is no number or amount on the envelope, no 
name on it, just a little loop, a part of a letter." Having exacted that admis- 
sion, Rosser then asked the machinist if he'd aided Dorsey in his investiga- 
tion. When Barrett all too eagerly answered yes, Rosser returned to the 
defense table. He'd done what he could— which wasn't much. According to 
the Georgian, "Barrett made probably the best witness the state called dur- 
ing the forenoon." 



The striking young woman who unexpectedly took a seat among the spec- 
tators at the start of Thursday's afternoon session may have been, as she 
claimed, another of the Atlantans for whom the trial's allure was irre- 
sistible. But this explanation strained credulity. The last time Callie Scott 
Applebaum had been in a courtroom, she had herself been on trial for mur- 
der. What's more, her highly publicized acquittal had inspired widespread 
misgivings regarding the prosecutorial skills of Hugh Dorsey. No, Mrs. 
Applebaum, fashionably turned out and professing faith in Frank's inno- 
cence, was in the gallery as part of a defense ploy to rattle the solicitor. 

That Frank's counsel had resorted to such a tactic was the first indication 
that Dorsey had begun to worry them, but the solicitor resfused to be 
shaken. Picking up where he'd left off Thursday morning, he spent the day's 
remaining hours presenting witnesses who could bolster his contention that 
the crime had occurred in the factory metal room. Mel Stanford, a plant 
janitor, corroborated Barrett's testimony that neither the red stains nor 
the hair discovered the Monday following the murder had been present 
the preceding Friday. Dr. Claude Smith, chemist for the city of Atlanta, 
resolved any doubts as to the composition of the stains, declaring that 
microscopic examination had shown them indeed to be blood. (Smith also 
reinforced the state's theory that the shirt found at Newt Lee's house had 
been a plant, echoing the view that the garment had been purposely wiped 
over a bloody surface.) And Mrs. George Jefferson, a polishing-department 
employee, affirmed Detective Starnes's assertion that twine of the sort used 
to choke Mary Phagan was stored in the metal room. 

The defense had at each of these witnesses, but the only one Luther Rosser 
managed to shake was Dr. Smith. During a pointed cross-examination, the 
chemist confessed that the tests he'd performed on the wood chipped up 
from the metal room floor had yielded but four or five corpuscles of blood of 
indeterminate origin. Reported the Journal: "He admitted that the blood 
might have been from a mouse." 

Smith's revelation regarding the state's blood evidence would not, how- 
ever, constitute the only defense triumph during Thursday's waning hours. 
As his last witness of the afternoon, Dorsey summoned E. F Holloway, the 



230 AND THE DEAD SHALL RISE 

factory's day watchman. In an affidavit taken during the investigation, Hol- 
loway had told Detectives Starnes and Campbell that prior to leaving work 
the evening before the murder, he had locked the second-floor electric 
switch box. The assertion gave the lie to Frank's claim that the box, due to 
an insurance company edict, was kept unlocked, and the solicitor expected 
Holloway to repeat it. Such testimony would pave the way for the prosecu- 
tion's argument that Frank had unlocked the box the day of the crime so 
that he and Conley could turn on the elevator and transport Mary Phagan's 
body to the basement. Yet when Dorsey posed the question, Holloway 
unexpectedly offered a different story, declaring that while he had locked 
the box late Friday, he had unlocked it Saturday morning for Denham and 
White, the two workmen laboring on the building's top floor, to plug in a 
saw. 

These setbacks notwithstanding, there can be no doubt that Dorsey had 
regained the upper hand. Noted the Georgian: "The state fared better 
Thursday than any other day during the trial." 



Thursday night, thundershowers drenched Atlanta, cooling and clearing the 
air. But the relief lasted only a moment. August had come, and Friday morn- 
ing the city awakened to what now seemed its constants— the heat and the 
trial. By 8:40, the sweltering building at the corner of Hunter and Pryor 
streets was already filled to capacity, as were the coveted perches atop the 
adjacent construction sheds. 

The day's session opened with Hugh Dorsey testing his luck. Leo Frank's 
closest business associate, N. V. Darley, was a reluctant witness. Nonetheless, 
the solicitor called the assistant factory superintendent. Dorsey was gam- 
bling that he could wrest the sort of admissions from Darley that the man's 
loyalties would make all the more devastating. 

First, the solicitor wanted corroboration of earlier claims by various wit- 
nesses as to Frank's anxiety on the morning Mary Phagan's body was dis- 
covered. "Was he done up?" he asked. To this and several similar inquiries, 
Darley tendered equivocal responses, making it plain he would rather not 
say anything that might incriminate his boss. But Dorsey hammered away, 
eventually eliciting the statement: "I could perceive that his whole body 
was trembling." 

Next, the solicitor wanted support for the prosecution's contention that 
the mysterious club located in the National Pencil Company lobby in mid- 
May was as much a plant as the bloody shirt found earlier at Newt Lee's 
house. After obtaining Darley's acknowledgment that the factory had been 
well cleaned in the murder's immediate aftermath, Dorsey turned to the 



PROSECUTION 23I 

prosecution table, retrieved the club and hurled it to the floor in front of 
the witness stand. 

"Was any club of this sort turned up during the cleaning?" he demanded. 

"No," Darley replied. 

"And was not this a thorough cleaning?" 

"It was." 

With that, the solicitor sat down. 

From the moment the affable Reuben Arnold rose to his feet to conduct 
his first cross-examination of the trial, it was clear that the defense intended 
to make the prosecution pay for having put someone so sympathetic to 
Frank on the stand. Mister Rube began by asking Darley if he realized that 
both the state's blood and hair evidence had been discovered by "Christo- 
pher Columbus Barrett." Understandably, Dorsey objected to this sarcastic 
question, but after Arnold explained that he hoped to show Barrett had 
been less interested in the truth than in the reward money, Judge Roan 
allowed it, and Darley replied: "It is my understanding that Barrett has 
been doing most of the discovering done in the building. He has lost quite 
some time since the murder, and buys quite some extras and reads them." 
Having thereby cast doubt on Barrett's motives, Frank's co-counsel pro- 
ceeded to use Darley to attack Barrett's findings themselves. For openers, 
there were the spots on the metal room floor. Such spots, the witness stated, 
were actually common due to the fact that female workers experiencing the 
onset of their menstrual cycles had to walk through the area to reach the 
nearest women's restroom, as did injured workers seeking first aid. Then 
there were the strands of hair found on Barrett's lathe handle. Declared 
Darley: "I don't think there were over 6 or 8. It was pretty hard to tell the 
color." Finally, there was the scrap of paper purportedly torn from Mary 
Phagan's pay envelope. As Darley described it, the shop was often littered 
with such scraps. This because, upon receiving their wages from the nearby 
payroll window, employees eagerly ripped open the envelopes, scattering 
pieces everywhere. 

The assault upon Barrett's discoveries thus completed, Arnold directed 
Darley's attention to several other claims the prosecution had adduced as 
proof that the crime had been committed in the metal room. According to 
Detective John Starnes and Mrs. George Jefferson, twine of the sort that 
had been used to choke Mary Phagan and paper of the sort upon which the 
murder notes were written could be found chiefly on the plant's second 
floor. Yet as assistant superintendent, Darley was better qualified than any- 
one to speak to these subjects, and he did, telling the lawyer: "I have seen 
these cords that we tie up slats and pencils with in every part of the factory. 
I have raised sand about finding them in the basement." Then, after being 



232 AND THE DEAD SHALL RISE 

handed one of the murder notes: "Yes, I have seen all kinds of papers down 
in the basement. The paper that note is written on is a blank order pad. That 
kind of little pad is used all over the factory. The foreladies make their 
memorandum on that kind of tablet. They are all over the building." 

Had he simply quit, Arnold already would have succeeded in marring 
the foundation of Dorsey's case, but Darley's thorough knowledge of plant 
operations made him the ideal witness to introduce the defense's con- 
tention that Frank's workload on April 26 had been so heavy that he could 
never have completed it had he just committed a murder. Hence, Arnold 
asked for an account of the tasks Frank normally undertook on Saturday 
afternoons, receiving in reply a description of the computations involved in 
preparing the weekly production and sales report. "A skillful, clear-headed 
man," Darley informed Mister Rube, would need three hours, and as of 9:40 
on the morning of the slaying, Frank had not started. Yet upon arriving at 
the factory early the next day along with the investigating officers, Darley 
said he found the report finished. 

By this juncture, Hugh Dorsey realized what was happening, and in a 
pained voice asked, "Are you through with him, Mr. Arnold?" But his 
opposing number wasn't about to let up, replying, "Oh, no, no. We haven't 
got a good start with him yet." Darley was just the man to launch the argu- 
ment that the factory elevator was so creaky that if, as Conley had sworn in 
his affidavits and was expected to testify, it had been used to take Mary Pha- 
gan's remains to the basement, the two workmen laboring upstairs at the 
time would have heard it. He was also just the man to debunk the claim that 
the metal shop provided a secure place to conduct a tryst or commit a 
crime. "There is no lock on the metal room doors," he testified, meaning 
that the department's main entry— as opposed to the secondary one de- 
picted on the prosecution diagram— could not be secured. Finally, Darley 
could credibly advance the thesis that Frank's behavior on the morning 
Mary's body was located, far from being suspicious, was typical. Recalling a 
day several years before when Frank arrived at work after having seen a 
child run over by a streetcar, he told Arnold: "He came in about 2:30 and he 
couldn't work any more on his books until a quarter after four. He trem- 
bled just as much on that occasion as he did on the Sunday after Mary Pha- 
gan was killed." 

Mercifully for the state, Judge Roan chose this moment to recess for 
lunch, bringing an end to the rout. Upon commencing Friday's afternoon 
session, Arnold at last handed Darley back to Dorsey for redirect, but try 
as he might, the solicitor could not undo the damage. For all of that, how- 
ever, Dorsey did not seem upset about the way things had gone. The wit- 
ness had, after all, been a calculated risk. Yet apart from this awareness, 
the solicitor had another reason not to agonize. Like a shrewd cardplayer, 



PROSECUTION 233 

he'd divested himself of most of his weak suits and would finish out the 
game dealing trumps. 



As soon as Dr. Henry Fauntleroy Harris, medical bag in hand, approached 
the witness stand, the crowd inside the packed courtroom tensed. During 
the months since Harris supervised the exhumations of Mary Phagan's 
body, speculation as to what light science would shine on the crime had only 
increased. Save for Jim Conley, no witness was more avidly awaited. 

Thin and pale, skin tautly drawn over high cheekbones, rimless specta- 
cles camped atop a sharp nose, Harris appeared at once vulnerable and 
severe. Which he was. For the past week, he had been suffering from the flu, 
and it was with difficulty that he had risen from bed. Yet now that he was 
before the jury, he did his best to affect the unassailable posture common to 
his profession, at the solicitor's request crisply enumerating his degrees and 
honors. 

From the outset, Harris did all that Dorsey asked and more, delivering 
testimony that not only completed the state's circumstantial case against 
Frank but provided solid medical rationales for several points Conley was 
expected to make later. Regarding Mary Phagan's badly bruised right eye, 
the doctor contended that his examination had shown that the blow causing 
the injury had been inflicted before death by a "soft instrument," most 
likely a fist. Regarding the jagged wound behind the girl's left ear, he said it, 
too, had been suffered while she was alive, most likely when she had fallen 
backward into a sharp object. The surrounding tissue had been "shoved 
upward slightly," a circumstance that would not have obtained had she been 
clubbed. Though Harris believed the traumas were sufficient to have 
knocked the child out, he didn't think they killed her. "Strangulation," he 
declared, "was beyond a doubt the cause." 

Having thus secured support for his theory of where and how the murder 
had been committed, Dorsey directed Harris to the question of when. After 
obtaining the doctor's acknowledgment that he had examined the dead 
girl's stomach and removed 160 cubic centimeters of cabbage and biscuit, 
the solicitor asked how far the material had progressed toward digestion. 
"Very slightly," replied Harris, reaching into his bag and extracting a vial 
that held several pieces of nearly intact cabbage floating in a preservative 
medium. "This," he said, "is some of what I removed from the stomach." 

As Harris displayed the vial to the jury, Dorsey asked how long the cab- 
bage had been in Mary Phagan's system before death. "I am confident," 
answered the doctor, "that it could not have been there for more than half 
an hour." While the weight of this assertion— which recalled both Mrs. 
Coleman's testimony that her daughter had eaten just past 1 1 a.m. on April 



234 AND THE DEAD SHALL RISE 

26 and Monteen Stover's claim that Frank was not in his office at 12:05 — 
hung in the air, Harris removed two other vials from his bag. Both were 
filled with a pasty, unrecognizable substance. Displaying them to the jury, 
the doctor announced that they contained cabbage taken from the stom- 
achs of "normal persons" after an hour of digestion. The demonstration 
provided the backdrop for Harris's definitive utterance as to the time of 
death: "She was either killed or received the blow upon the head thirty or 
forty-five minutes after her last meal." 

Compelling as all this was, it was Dorsey's succeeding area of inquiry 
that electrified the courtroom. The question: 

Dr. Harris, did you ever examine the vital organs of Mary Phagan's body? 

The answer: 

I made an examination of the privates of Mary Phagan. I found no sper- 
matozoa. On the walls of the vagina there was evidence of violence of 
some kind. The epithelium was pulled loose, completely detached in 
places, blood vessels were dilated immediately beneath the surface and 
there was a great deal of hemorrhage in the surrounding tissues. The dila- 
tion of the blood vessels indicated to me that the injury had been made in 
the vagina some little time before death. Perhaps ten to fifteen minutes. It 
had occurred before death by reason of the fact that these blood vessels 
were dilated. Inflammation had set in and it takes an appreciable length of 
time for the process of inflammatory change to begin. There was evidence 
of violence in the neighborhood of the hymen. 

Though Harris did not spell it out, his testimony clearly conveyed the 
state's position— Mary Phagan had suffered some sort of sexual violation 
that, while leaving no seminal fluid, constituted rape. 

There was, at this juncture,more that Dorsey wanted to explore, but before 
he could proceed, Harris, complaining that he was "utterly exhausted," 
abruptly asked to be excused. After receiving the doctor's assurances that he 
would return as soon as he was able, Judge Roan assented. At first blush, Har- 
ris's departure seemed another setback for the state. But as the solicitor well 
knew, the doctor's leavetaking, which denied the defense the chance to get a 
timely crack at him, was a gift. As he told the Constitution: "It is perfectly plain 
sailing from now on. We have a mass of evidence and it is only a question of 
knitting it together." 

Dorsey's confidence was borne out by Friday's remaining witnesses. 
From Mrs. Arthur White, he secured the information that she had seen an 
unidentified Negro lurking in the factory lobby on the day of the murder 



PROSECUTION 235 

not, as had been initially reported, at noon but around 1 p.m., a time consis- 
tent with the claim Conley had made in his first affidavit that this was the 
hour Frank had summoned him upstairs to write the murder notes. From 
Albert McKnight, whom the bailiffs had finally tracked down, he elicited 
the anticipated assertion that not only had Frank not eaten lunch on the 
afternoon of the crime but that he'd returned to work after spending just 
ten minutes at home. Though Luther Rosser eventually obliged McKnight 
to recount a few of the dismaying details relative to the procurement of his 
wife's infamous affidavit, the defense was able to do little else with either of 
these witnesses. 



Determined to build on Friday's victories, Dorsey kicked off Saturday's 
half-session by calling Helen Ferguson. Hair neatly plaited into braids that 
fell down the back of a white dress adorned by a bow at the neck, this 16- 
year-old factory worker was familiar to all who had followed the investiga- 
tion. On the morning Mary Phagan's body was discovered, she had informed 
Fannie and John W. Coleman that their daughter had been killed. Now she 
had been summoned to deliver one of the state's most damaging bits of 
information, and the solicitor wasted no time eliciting it. 

"Did you see Frank on April 25, the Friday before the murder?" Dorsey 
began. 

"Yes," Ferguson replied. 

"At what time?" 

"At about 7 o'clock in the evening." 

"What was said?" 

"I asked Mr. Frank for Mary Phagan's money." 

"Well, what did he say?" 

"He told me that I couldn't get it; that Mary would be there Saturday 
and she could get it then all right." 

"Had you ever got Mary Phagan's money for her before that?" 

"Yes, on two occasions." 

Though Helen would subsequently tell Luther Rosser that both times she 
had picked up Mary's wages she had received them from someone other 
than Frank, and while she would admit that on April 25 she had forgotten 
her friend's payroll number, possibly explaining Frank's refusal, neither 
acknowledgment softened the blow. As she reiterated to the defense lawyer 
when he asked her to repeat Frank's response to her request: "He said that 
she'd be there Saturday." 

Hugh Dorsey next called Dr. J. W. Hurt, the Fulton County medical 



236 AND THE DEAD SHALL RISE 

examiner. Though the solicitor fully expected Dr. Harris, once recovered, to 
put the finishing touches on the medical portion of his case, he wanted to 
reinforce the main points while they were still vivid in the jurors' minds. 
Which was what he did, obtaining Hurt's endorsement of Harris's findings 
that the wound to the back of Mary Phagan's head had been made by 
a "blunt-edged instrument" striking "from down upward," that her right 
eye had been blackened by someone's fist and that she had died of strangu- 
lation. 

Yet much as Hurt helped the state, he would also harm it. As the news- 
papers had already reported, he and Dr. Harris were in dispute regarding a 
key matter, and rather than let the defense raise it, Dorsey attempted to 
defuse the issue by doing so himself, concluding his examination by asking 
the doctor if little Mary had been raped. Replied Hurt: 

I discovered no violence to the parts. There was blood on the parts. I didn't 
know whether it was fresh blood or menstrual blood. The vagina was a lit- 
tle larger than the normal size of a girl that age. It is my opinion that this 
enlargement of the vagina could have been produced by penetration 
immediately preceding death. 

Frank's lawyers, of course, would have preferred to secure Hurt's uncer- 
tain answer to this vital question themselves, but despite the prosecution's 
effort to pull the sting, they were not about to leave it alone. Indeed, 
Reuben Arnold, whose hiring had been in part predicated on his medical 
knowledge, sharply cross-examined the doctor on the issue. Ever so deli- 
cately, Mister Rube posed a series of questions designed to suggest that lit- 
tle Mary, contrary to widely held and deeply felt convictions, had not been a 
virgin. Eventually, the doctor confided: "Her hymen was not intact, and I 
was not able to say when it was ruptured. I saw no indication of injury to the 
hymen." 

Arnold wrapped up by directing Hurt's attention to one other critical 
topic— the wound on the back of Mary Phagan's head. As the doctor now 
acknowledged, the wound had not necessarily been inflicted by a fall against 
Barrett's lathe. It could as easily have been suffered during a tumble down 
the factory elevator shaft. 

During his redirect examination of Hurt, Hugh Dorsey had every inten- 
tion of putting the pieces back together again, but he was almost denied the 
chance, for it was at this pass, following a brief recess, that the trial of Leo 
Frank nearly ended. As spectators were settling down and lawyers were 
huddling, Judge Roan emerged from his chambers carrying the Georgian's 
latest extra. Blared the red banner: state adds links to chain. When 
Reuben Arnold noticed jurors not only reading the headline but craning 



PROSECUTION 237 

their necks to make out the underlying story, which detailed the prosecu- 
tion's late-Friday triumphs, he and Rosser approached the bench. Roan, 
upon being informed of what had occurred, ordered the twelve-man panel 
from the room. 

The debate over whether a mistrial should be declared raged until 
Frank's lawyers, revealing that they expected to prevail in the present pro- 
ceedings, announced they would be satisfied if Roan simply instructed the 
jury, as Rosser put it, "to disregard this headline." Though Dorsey coun- 
tered that no admonition was necessary, maintaining that the panel had 
been previously exposed to newspaper coverage damaging to the state, the 
judge seized upon the defense's proposal. After recalling the jurors, he 
advised: 

Gentlemen, it has been said by some that you have been able to see some 
writings or headlines in the newspapers that might influence you. If you 
have seen anything in the newspapers or heard anything, I beg of you now 
to free your mind of it, regardless of whether it be helpful to the state or to 
the defense. 

The crisis thereby averted, Hurt returned to the stand and Dorsey went 
back to work, quickly extracting statements that negated some of what 
Arnold had accomplished during his cross-examination. Yet for all intents 
and purposes, the argument sparked by Judge Roan's indiscretion had 
brought the day's abbreviated session to a conclusion. The first week was 
over. 



Late Saturday, as Hugh Dorsey plotted strategy in his Thrower Building 
office and Leo Frank rested in his cell, police officers escorted Jim Conley 
into a secluded courtyard behind the station house where, as the Constitu- 
tion's Britt Craig put it, they "turned a liberal hose" on him until he was as 
"shiny as the brass trimmings on a 19 14 model auto." Then, courtesy of 
William Smith, the Negro was treated to a haircut and a shave. Finally, he 
was outfitted with a new suit of clothes and a pair of dress shoes. 

Conley's turn on the stand was at hand, and if anything, it was regarded 
as more critical to the trial's outcome than ever. To be sure, the prosecution 
had by this juncture presented a mass of circumstantial evidence against 
Frank. Even the Georgian's James B. Nevin, in a summary of events to date, 
conceded as much: 

The State HAS definitely shown that Leo Frank might have murdered 
Mary Phagan and that he DID have the opportunity to accomplish it. 



238 AND THE DEAD SHALL RISE 

Having shown that the OPPORTUNITY was there, and that the mur- 
der likely was consummated during the time limits of that opportunity, the 
elements of the case need but be knitted properly together to make dark 
the outlook for Frank. 

Yet the defense had badly roughed up several of Dorsey's witnesses. More- 
over, Frank had not been connected to Mary Phagan in anything other than 
a cursory fashion. The issues at the heart of the matter remained unre- 
solved. Looking ahead to when court reconvened, the Georgian declared: 

The questions to be thrashed out are these: 

Did Leo Frank, between 12 o'clock and the time he left the pencil fac- 
tory, after paying Mary Phagan her pittance of wages, lure or follow her 
into the back of the second floor, there assault her and kill her? Did he 
then secure the services of Jim Conley to conceal the body? 

Or did Jim Conley, half drunk, loitering in the dark hallway below, see- 
ing little Mary Phagan coming down the steps with her mesh bag in her 
hands, brooding over his lack of funds wherewith to get more whisky, find 
in this setup an opportunity to secure a little money— the violent killing of 
the girl following? 

About Conley— ever and always about Conley— the Frank case re- 
volves, and will revolve until it ends. 

Would-be spectators began arriving at the old city hall at 6:30 Monday 
morning, and by 9:00 the line stretched single file down Hunter Street to the 
state capitol a quarter mile to the east. The scene, noted the Journal, was 
reminiscent of that before a World Series baseball game. Shortly after 
the 250 available seats had been allotted, Hugh Dorsey cried, "Bring in 
Jim Conley." The request sparked a smattering of applause, but deputies 
quickly restored order, and following a brief delay, Chiefs Lanford and 
Beavers led the Negro into the courtroom, William Smith bringing up the 
rear. As Conley passed the defense table, he gazed evenly at Frank, who 
returned the gaze in kind. Once the witness was seated and sworn, Dorsey 
went right to work. 

"Do you know Leo Frank?" the solicitor asked. 

"Yes, I know him. There he is," Conley replied, indicating the bespecta- 
cled figure who sat between his wife and mother ten feet away. At this, 
Frank turned to Lucille and whispered a few reassuring words. 

"Did you have any conversation with Mr. Frank on Friday, April 25?" 
Dorsey continued. 



PROSECUTION 239 

"Yes, sir," Conley answered. "About three o'clock, Mr. Frank come to 
the fourth floor where I was working and said he wanted me to come to the 
pencil factory on Saturday morning at 8:30." 

"Had you ever been back there before on Saturdays?" 

"Yes, sir. Several times." 

"How often?" 

Immediately, Rosser objected. The subject, he said, was immaterial. 
Roan concurred, and the solicitor returned to the Saturday in question. 

"Who got there first? You or Mr. Frank?" 

"We met at the door and I followed him in." 

"What conversation did you have?" 

"Mr. Frank said that I was a little early. I told him it was the time he'd 
said for me to come. He said I was a little too early for what he wanted me 
to do. I asked him what he wanted. He said he wanted me to watch for him 
like I had on other Saturdays." 

"What had you been doing on other Saturdays?" Dorsey asked. 

Again, Rosser objected, but this time Roan overruled him and Conley 
responded, "I had watched for him while he was upstairs talking to young 
ladies." 

Lest anyone miss the point, Dorsey demanded a description of the job's 
responsibilities. 

"I would sit down at the first floor and watch the door for him," Conley 
replied. 

"How often had you done this?" 

"Several times." 

"Was Frank up there alone on those Saturdays?" 

"No, sometimes there 'd be two young ladies and another young man. A 
lady for him and one for Mr. Frank." 

"Was Mr. Frank ever alone there?" 

"Yes, sir. Last Thanksgiving day." 

"Who came then?" 

"A tall, heavy-built woman." 

Having thus managed not only to introduce the first strong whiff of sex- 
ual impropriety but to suggest a pattern of relevant past dealings between 
Frank and his accuser, Dorsey steered the examination back to the Satur- 
day of the murder. According to Conley, upon being told that he'd arrived 
ahead of schedule, he asked the superintendent for permission to visit his 
mother at the Capital City Laundry. The understanding, he said, was that 
later that morning, he and Frank, who also had some outside business, 
would meet on a prearranged street corner opposite the Montag Paper 



240 AND THE DEAD SHALL RISE 

Company. This, he added, they did, whereupon the two returned to work, 
the superintendent walking so briskly that he nearly bowled over a man 
carrying a baby. 

"Now, when you got to the factory," Dorsey asked, "what happened?" 

Here, Conley pivoted toward the jury and exhibiting the polish he'd 
acquired under Smith's tutelage (Jim spoke "with the voice of a young 
teacher of elocution," noted the Journal) unburdened himself of his story's 
most critical details. "We went in," he began, "and Mr. Frank told me about 
the lock on the front door. 'If you turn the knob this way, nobody can get in,' 
he said. Then, Mr. Frank told me to come over and said, 'Set on this box.' He 
said there'd be a young lady up here pretty soon and 'We want to chat 
awhile.' Mr. Frank said, 'When I stomp, that's her, and you go shut the door. 
And when I whistle, you can go and unlock the door and come up and say 
you want to borrow some money and that will give her a chance to get out.' " 

Conley's positioning the morning of the crime thereby established, 
Dorsey asked him to name the people who'd subsequently entered and 
exited the building, and he did, mentioning Assistant Superintendent Dar- 
ley, the factory employee Mattie Smith, a "peg-legged" Negro drayman, an 
unidentified woman who worked on the plant's fourth floor, watchman 
Holloway and Lemmie Quinn. Then he said: "The next person I saw was 
Miss Mary Perkins. She came in and went upstairs." 

"Who is Miss Mary Perkins?" Dorsey inquired. 

"That's the lady that's dead," Conley answered, revealing for the first 
time that he'd seen the victim alive the day of her murder. "I heard her foot- 
steps going toward the front of the office, and then I heard steps going 
toward the metal room. The next thing I heard was her screaming." 

"Then what did you hear?" asked the solicitor. 

"I didn't hear anymore." 

As Conley related these assertions, Frank continued to exhibit little 
emotion, but neither of the women at his side could conceal their feelings. 
Lucille bowed her head as if she'd absorbed a blow, while his mother gazed 
up, in the Georgian's phrase, "with an expression of pathetic pleading at the 
negro witness." 

There would, however, be no relief. For starters, Conley informed the 
court that the next person he saw pass through the lobby was Monteen 
Stover. When asked how she was dressed, he confirmed what the girl had 
herself testified, replying, "She was wearing tennis shoes and a raincoat." 
Conley then told of Monteen's departure, which was followed, he said, 
by the sound of "tiptoes coming from the metal department" and, after a 
brief pause, "tiptoes running back" toward the same place. Once the noise 
ceased, Conley added, he had fallen asleep, not awakening until "I heard 
Mr. Frank stomping over my head." 



PROSECUTION 241 

"Then what happened?" asked Dorsey. 

"I heard Mr. Frank whistle." 

"Well, what did you do when you heard Mr. Frank whistle?" 

"I unlocked the door just like he said and went upstairs. Mr. Frank was 
standing at the head of the stairs shivering. He was rubbing his hands 
together and acting funny." 

"Show the jury how he was acting." 

Evincing the same skill for charades with which he'd captivated re- 
porters during his tour of the pencil factory two months earlier, Conley 
bounced to his feet, knees knocking, arms shaking. Then he sat back down, 
and Dorsey resumed. 

"What did Frank have?" 

"He had a little cord in his hands— a long wide piece of cord." 

"Did you look at his eyes?" 

"Yes, sir." 

"How did they look?" 

"His eyes was large. They looked funny and wild." 

"Did Frank say anything to you?" 

"Yes, sir, he asked me if I saw a little girl pass along up there. I told him 
yes, I saw two but one went out; but that I didn't see the other come out." 

"Well, then what did Frank say?" Dorsey asked. The question was no dif- 
ferent than those that had preceded it, but it elicited an answer unlike any 
thus far: 

He says, "Well, that one you say didn't come back down, she came into 
my office a while ago and wanted to know something about her work and I 
went back there to see if the little girl's work had come, and I wanted to be 
with the little girl, and she refused me, and I struck her and I guess I struck 
her too hard and she fell and hit her head against something, and I don't 
know how bad she got hurt. Of course, you know I ain't built like other 
men." The reason he said that was, I had seen him in a position I haven't 
seen any other man that has got children. I have seen him in the office two 
or three times before Thanksgiving and a lady was in his office, and she was 
sitting down in a chair and she had her clothes up to here, and he was down 
on his knees, and she had her hands on Mr. Frank. I have seen him another 
time there in the packing room with a young lady lying on the table, she 
was on the edge of the table when I saw her. 

With that, Conley had gone further than he had in any of his affidavits, 
flatly asserting what had previously been merely intimated— namely, that 
Frank had pursued Mary Phagan sexually, killing her when she resisted his 
advances. Even more damning, however, were his allegations regarding the 



242 AND THE DEAD SHALL RISE 

factory superintendent's sexual preferences. To accuse Frank of attempted 
rape and murder was bad enough, but to imply that due to some unspecified 
physical abnormality he had tried to perform what most Atlantans would 
have considered an act of perversion and what Georgia law regarded as the 
capital offense of oral sodomy was devastating. Spectators and jurors, noted 
the Georgian, "strained forward in their seats," while reporters silently 
speculated as to why the defense did not object to the new and by every 
legal standard inadmissible charge. "Apparently," concluded the Constitu- 
tion, "they were willing for him to go the limit, depending on breaking him 
down later and discrediting the whole story." 

Dorsey now initiated a line of questioning designed to elicit the well- 
known but essential guts of Conley's story. The sight of little Mary lying 
dead outside the factory metal room, the bundling up of the body, the toting 
of the awkward load the length of the building, the help ultimately lent by 
Frank— to all of these things did the Negro attest. So, too, did he reaffirm 
other critical elements of his tale, among them those concerning the trans- 
portation of the remains to the basement, the return trip to the second floor 
(complete with a description of Frank's fall when exiting the elevator) 
and the sweaty minutes he claimed to have spent closeted in the office 
wardrobe during the unexpected visit by Emma Clark and Corinthia Hall. 

The final matters to which Dorsey directed Conley's attention involved 
Frank's alleged attempt to cover up the crime. Much of this material— 
particularly as it related to the composition of the murder notes— was also 
familiar, but the Negro did illuminate several murky points. Regarding the 
origination of the scheme, he asserted: "Mr. Frank says, T can tell you the 
best way for us to get out of this. You write what I tell you.' " As to why he 
cooperated, he declared: "I was willing to do anything to help Mr. Frank, 
him being a white man and my superintendent, too." Yet a desire to accom- 
modate his boss was not Conley's sole motivation. Profit was also a factor, 
and he took this occasion to provide a fuller account of the cash offer Frank 
purportedly made only to withdraw later. The $200 payment, the Negro 
claimed, was contingent not just on his penning the notes but on his per- 
forming one more task— burning the body. The prospect, however, terrified 
him. "I was scared and I told Mr. Frank to come down with me and watch," 
he testified. "Mr. Frank said he couldn't go down there, and then Mr. Frank 
said to hand him that money. Ts that the way you are going to do me?' I 
asked Mr. Frank and he said, 'You just keep your mouth shut.' " According 
to Conley, it was shortly after shushing him that Frank looked to the ceiling 
and exclaimed: "Why should I hang? I have wealthy people in Brooklyn." 
And it was shortly after making this statement, the Negro added, that the 
superintendent once again beseeched him to help dispose of the remains. 
" 'Can you come back this evening and do it?' " he said Frank asked, prom- 



PROSECUTION 243 

ising: " 'I will fix the money.' " Conley confessed that he agreed to the 
request the second time around, but he said that upon leaving the factory, 
he went to a saloon and drank a doubleheader, then stumbled home and 
fell asleep. As to how the murder notes ended up beside the body, he main- 
tained ignorance. He said he next saw his boss three days later at work. "He 
walked up and said, 'Now remember, keep your mouth shut,' and I said, 'All 
right,' and he said, 'If you'd come back on Saturday and done what I told 
you to do with it down there, there wouldn't have been no trouble.' " 

On that line, Dorsey might have ended, yet in order to ensure that the 
jurors could visualize Conley's story, he instructed the Negro to indicate 
various important spots on Bert Green's factory diagram. Then, sending the 
first signal that he would call witnesses to support Conley's claims regard- 
ing Frank's sexual misconduct, he asked the Negro to name the woman 
who'd been in the superintendent's office on Thanksgiving 1912. Conley 
responded that he could not remember, but when the solicitor followed up 
by asking him to identify the man who'd joined Frank for several of his 
other purported trysts, the Negro replied: "Mr. Dalton." Shortly thereafter, 
Dorsey returned to his seat. 



Just how well Luther Rosser and Reuben Arnold comprehended the enor- 
mity of the job confronting them was evidenced by the fact that rather than 
launch directly into Jim Conley's cross-examination, they requested a recess 
and retired to an anteroom to discuss strategy. As everyone who had heard 
his narrative understood, Conley would not be easily broken down. "The 
negro forgot nothing, omitted nothing that he had told before," observed 
the Georgian. "He never was confused." Yet this is not to say that his latest 
version of events was regarded as unassailable. Several of the very factors 
that had made the account gripping raised doubts as to its veracity. "Jim's 
story was so completely at the tip of his tongue— even the minutest things— 
that his testimony had a recitative air," reported the Journal, echoing a mis- 
giving that had met earlier tellings. Then there were the many details that 
had not appeared in what had heretofore been viewed as Conley's definitive 
utterance— his last affidavit. Finally, however, there was the overarching 
issue of race. "Jim Conley has upset traditions of the South," declared the 
Georgian's Fuzzy Woodruff. "A white man is on trial. His life hangs on the 
words of a negro. And the South listens to the negro's words. But the South 
has not thus suddenly forgotten the fact that negro evidence is as slight as 
tissue paper. The South has not forgotten that when a white man's word is 
brought against a negro's word, there is no question as to the winner." All of 
which explains why when Frank's lawyers returned, Hugh Dorsey could be 
seen shifting nervously in his chair. 



244 AND THE DEAD SHALL RISE 

Luther Rosser began by gently querying Conley regarding his personal 
and job history. After obtaining a few unremarkable particulars, the lawyer 
shifted to the topic of the Negro's education. When Jim claimed to be not 
much of a reader ("I can't read the newspapers good," he said), the big man 
merely grinned. 

"You can make out some words in the newspaper, can't you?" 

"Yes, sir, little words like 'dis' and 'dat.' " 

"You can spell 'dis' and 'dat,' can't you?" 

"Yes, sir." 

"Can you spell 'cat'?" 

"Yes, sir, I can spell that word." 

"Well, how do you spell it, with a 'c' or a 'k'?" 

"With a 'k.'" 

"Why, sure you do." Rosser beamed, ignoring the gallery's titters. "Jim, 
you and I understand each other thoroughly, don't we?" 

"Yes, sir, we sho' does, sir," Conley replied, although his expression sug- 
gested differently. But what was lost on him was not lost on others. Noted 
the Constitution: 

Wise lawyers in the courtroom saw what was coming. They realized that 
Mr. Rosser was reaching out for Jim like a small boy does for a dog he 
wants to get his hands on when the dog is rather shy and refuses to let him- 
self be approached. 

Like the boy who stoops down and chirps at the dog and shows friend- 
ship on his face, the shrewd lawyer [was] conspiring to get his hands on the 
witness. 

The defense had decided to flatter and encourage Conley, hoping that his 
natural gregariousness— the trait that had always worried Dorsey and 
Smith— would, over time, lead him to incriminate himself. 

Patiently, then, the ordinarily impatient Rosser wooed Conley, and in 
short order, he achieved some impressive results, ascertaining several facts 
the state had hoped would not surface. For one, the Negro admitted that 
despite earning a steady salary, he was often in debt. For another, he 
revealed that to escape the creditors who routinely gathered around the 
pencil factory on payday, he frequently departed through the basement 
door. The wobbly circumstances of Conley's financial life were, of course, 
vital to the defense's theory of the crime. So, too, was the news that he used 
the plant's rear exit to make getaways. 

Yet promising as this approach initially seemed, the defense was taking a 
risk. While the Negro might implicate himself, he almost certainly would 



PROSECUTION 245 

further implicate Frank. Though Rosser was aware of the danger, he hadn't 
anticipated how quickly he would encounter it. Following a few more ques- 
tions regarding various aspects of Conley's employment, the lawyer raised 
the topic of the extracurricular duties Jim claimed to have performed for 
Frank, asking: "When was the first time you watched for him?" 

"July," Conley matter-of-factly replied. 

"Was a lady with him?" 

"Yes, Miss Daisy Hopkins." 

"What time was it they came that first time?" 

"About 3:00 or 3:30 in the afternoon." 

"What were you doing?" 

"I was sweeping when they came in but Mr. Frank called me to his office 
and asked me if I wanted to make some money, and then he told me to 
watch the door for him. I went down and watched, and pretty soon the 
other lady came with Mr. Dalton. They came upstairs to Mr. Frank's office, 
stayed there ten or fifteen minutes. They came back down and went into the 
basement. I don't know how long they stayed [but] Mr. Dalton went out 
laughing and the lady went up the steps. Then the ladies came down and 
left, and then Mr. Frank came down. He gave me a quarter and I left." 

Hugh Dorsey hardly could have scripted an exchange more injurious to 
Frank. In a matter of seconds, Conley —by providing the name of one of the 
superintendent's alleged strumpets— had significantly bolstered the state's 
case. But Rosser stuck to his course, hoping that the Negro would eventu- 
ally trip and fall. In the same amiable tone, he continued to quiz Conley 
regarding his further experiences as Frank's lookout. The results, however, 
didn't change. On a subsequent Saturday, Jim said, Frank and Daisy had 
met alone in the office. His tip was 50 cents. Then there was Thanksgiving, 
which marked the visit of the aforementioned heavy-built woman. Conley 
couldn't recall her name, but he did provide a vivid description: 

The lady had on a blue skirt with white dots on it and white slippers and 
white stockings and had a gray tailor-made coat with pieces of velvet on 
the edges. 

He also recalled the amount of his tip — $ 1 .25 — and with abundant pride, he 
recited the compliment he claimed Frank paid him in this elegant creature's 
presence: 

After the lady came down, she said to Mr. Frank, "Is that the nigger?" And 
Mr. Frank said, "Yes," and she said, "Well, does he talk much?" And he 
says, "No, he is the best nigger I have ever seen." 



246 AND THE DEAD SHALL RISE 

And so the remainder of this Monday morning went, right up to 12:35 when 
court recessed for lunch. During the break, Leo Frank informed friends that 
his accuser's story was "the vilest and most amazing pack of lies ever con- 
ceived in the perverted brain of a wicked human being," and he expressed 
every confidence that Rosser would soon demonstrate as much. Others, 
though, were not so sure. Observed the Georgian's James B. Nevin: 

The crossing of Conley, upon which this case unquestionably will turn, 
will be either Rosser's victory or Rosser's defeat. 

Moments before the proceedings reconvened Monday afternoon, Judge 
Leonard Roan startled the gallery by ordering all women from the court- 
room, the sole exceptions being Frank's wife and mother. "I am doing this," 
Roan said, "on account of the character of the evidence"— meaning, of 
course, that he believed Conley's testimony was unfit for female ears. 
Understandably, the 175 spectators at whom the edict was directed reacted 
angrily. Flashes of resentment darkened the faces of grandmothers, middle- 
aged housewives, chorus girls, even, according to the Constitution's Britt 
Craig, "a painted-cheek girl with hollow eyes who bore the unmistakable 
stain of crimson." But despite the smoldering looks, no one voiced a protest. 
Soon enough, the seats that had been occupied by members of the fairer sex 
were filled by men, and the trial got back under way. 

From the instant Luther Rosser, having learned that Conley spent his 
lunch hour with William Smith and Detectives Starnes and Campbell, 
snorted that the group probably devoted more time to rehearsing stories 
than eating, it was plain he was through making nice. Gone were the helpful 
nods and pleasant smiles. Moreover, rather than merely ask the Negro for 
additional instances when he had served as Frank's lookout, the lawyer tried 
to pin him down to exact dates, hoping to catch him in a lie. Yet here again, 
Conley defied expectations; his powers of recall, so acute prior to the break, 
abruptly vanished. Questioned as to how he'd occupied himself the Satur- 
day before first watching for Frank, he said he didn't recollect. Questioned 
as to the Saturday afterward, he said the same thing. And so on and so forth 
until finally, following seven similarly fruitless forays, Rosser barked: "You 
don't remember any of these dates, Jim?" 

"No, sir," Conley replied, only too happy to agree with his inquisitor. 

Worrisome as Conley's sudden forgetfulness was to the defense, his ap- 
parently inexhaustible glibness engendered even greater concern, for far 
from wilting under Rosser's newfound aggressiveness, he seemed to bloom. 
Pressed about his past, he unabashedly confirmed that he'd been frequently 
incarcerated and was a heavy drinker. Grilled as to when he'd initially spo- 
ken with Frank other than on business, he calmly related a history of "jok- 



PROSECUTION 247 

ing" and "jollying" around the factory, asserting that the superintendent 
would often "goose" him. Then there was more regarding Daisy Hopkins. 

"Do you know where she lives?" demanded Rosser. 

"No, sir." 

"Is she married?" 

"I don't know." 

"What's the color of her hair?" 

"Don't remember." 

"What's the color of her complexion?" 

"What's 'complexion'?" 

"You're dark complected— I'm white complected." 

"Oh, she was white complected." 

"What kind of ears did she have?" 

"Ears like folks." 

"I didn't expect her to have ears like a rabbit," Rosser snapped, putting 
an end to this absurd volley but also betraying a first sign of frustration. 
Shortly thereafter, the defense, anxious to regroup, sought another recess. 



As Luther Rosser reapproached the witness stand, he held before him a 
sheaf of typewritten documents. Jim Conley's four affidavits— starting with 
the one of May 18, in which he falsely claimed not to have visited the 
National Pencil Factory on the day of Mary Phagan's murder— composed 
the text from which the defense would work for the rest of the afternoon. 
The intention was to confront the Negro with the statements' many fabrica- 
tions. 

"At police headquarters," Rosser began, glancing over the first of the 
documents, "you told Black and Scott that you got up at 9:30 on the morn- 
ing of the 26th, didn't you?" 

"Yes, sir," replied Conley. 

"That wasn't so, was it?" 

"No." 

"You lied, didn't you?" 

"Yes, sir." 

"You told them you left home that morning about 10:00. That wasn't 
true, was it?" 

"No, sir." 

"The truth is, you lied all the way 'round?" 

"I told some stories, I'll admit." 

"Didn't you tell Black and Scott that you bought half a pint of whisky 
on Peters Street at 10:00?" 



248 AND THE DEAD SHALL RISE 

"No, sir. I told Mr. Black about 10:30." 

"Well, that was not so, was it?" 

"No, sir." 

"Didn't you tell them that after you bought some liquor at 11:00 you 
went to some other saloon?" 

"I don't remember saying anything about 11:00, but I told them I went 
to Earley's Saloon." 

"Well, didn't you tell them you went to the Butt-In Saloon after that?" 

"Yes." 

"Then you told some things that were not true, did you?" 

"Yes, sir." 

"Did you look them straight in the face and lie?" 

"No, sir. I hung my head." 

There was just one more thing Rosser wanted to know about that initial 
statement: "Didn't you tell Black and Scott some things that were true and 
some that were not?" 

Yes, Conley replied mildly, he'd done exactly that. Then, throwing a 
punch his adversary did not expect, he added: "I didn't want to give Mr. 
Frank away [so] I held back some of the truth, but I wanted to tell some and 
let him see what I was going to do and see if he wasn't going to stick to his 
promise as he had said." 

Rosser tried not to flinch. "Oh, well," he said lightly, "we'll get to that 
later on." But he was plainly stunned. He had allowed Conley to articulate 
the state's rationale for the mendacities that marred both the first affidavit 
and all the others. Now there was little choice but to slug it out. Which was 
what he attempted to do, pummeling Conley with a series of derisive 
queries about his May 18 session with the detectives. "Did you look 'em in 
the eye?" he snarled. "Did you hang your head?" Then, finally: "Jim, what 
are some of your other lying habits?" To all of this, the Negro could do no 
more than state: "Sometimes, I played with my fingers." 

The damage thus papered over, Rosser turned to Hugh Dorsey and 
boasted: "You've had your day. Now, I'm going to have mine." Then he 
turned back to Conley, asking: "Tell me why it was you sent for Black 
on May 24?" What Rosser was hoping to hear was the Negro's account 
of the genesis of his second statement, the one in which he revealed how 
he'd taken down the murder notes. But again, Conley caught the lawyer 
unawares, replying: "Well, I wanted to tell something. I hadn't heard from 
Mr.F " 

This time, Rosser was quicker to cover up, cutting Conley off before he 
could finish, and immediately, Dorsey was on his feet. "The witness has a 
right to explain his answers," he objected. "He said he had heard nothing 



PROSECUTION 249 

from Frank and he was waiting for some word." Judge Roan, however, 
overruled this solicitor, and a shaken Rosser returned to his original topic 
of interest. 

The details attendant to the creation of Conley's May 24 affidavit were 
crucial to Leo Frank's cause. This document had enabled the police to link 
the superintendent to the murder notes. In a sense, the prosecution's entire 
case flowed from it. Yet here, too, the defense was handed a setback, for no 
sooner did Rosser get started than the Negro once more lapsed into deep 
forgetfulness. Following another litany of "I don't remembers," his nemesis 
wearily remarked, "Jim, you've got a poor memory." And that, essentially, 
brought Monday's proceedings to a close, although before court adjourned 
for the evening, the defense did accomplish something it had long advo- 
cated, convincing Judge Roan to transfer Conley back to the Tower. Con- 
sidering all that had transpired during the months since the Negro was 
placed in police custody, the move seemed too late to make any difference, 
although not everyone thought so. "This man, as your honor knows, has 
been through a most severe ordeal," protested William Smith, fearful of 
what might befall his client at the county facility. In response, Sheriff 
Wheeler Mangum, who happened to be present, promised Roan that Con- 
ley would be well treated. But Smith was not so sure. "Isn't it true," he 
asked, "that Mr. Frank has additional food served to him?" With that, 
Rosser had endured enough. "You send him something extra if you want 
him to have it," he bellowed. "That's what I want to do," answered Smith. 
Which was why as darkness fell on this hot August evening, Conley found 
himself not only sitting down to a steak supper courtesy his lawyer but 
in receipt of an exceedingly personal gift from him— a crisp new pair of 
undershorts to replace the ones he'd sweated through on the stand. 



Tuesday morning began much as Monday had ended. Confronted by Ros- 
ser with his May 28 declaration that on the day of the crime he'd eaten a 
leisurely breakfast at home— an assertion his direct testimony contra- 
dicted— Conley readily conceded that the initial story was untrue. Asked to 
recollect an incident he'd sworn to in another of his statements, he cited his 
weak memory. Pushed to account for his exceeding forgetfulness during the 
cross-exam thus far, he explained: "When I told a lie I knew it wouldn't fit 
and I'd have to change it, so I didn't remember much about it." Within an 
hour, Conley had admitted to a multitude of falsehoods and a dozen times 
claimed lapses in recall— none of which tarnished his major allegations. 

Though Rosser's anger was increasingly evident ("Don't you know a 
nigger never had sausage on the table without eating it?" he snapped dur- 
ing the exchanges regarding the witness's murder-day repast), so, too, was a 



250 AND THE DEAD SHALL RISE 

new strategy. Where on Monday, the defense's lead counsel had addressed 
Conley's affidavits one at a time, he would now shift abruptly among not 
just all four of them but also the trial record in an attempt to grind Jim up in 
his own widely divergent and still-evolving narratives. "I'm going to see if 
he can tell the same lie twice," the lawyer remarked in response to Hugh 
Dorsey's unsuccessful objection to the tactic. 

At first, Rosser's change of approach seemed effective. The sequence 
of events that had brought Conley and Leo Frank together on April 26, 
the amount of time he'd subsequently waited for Frank outside the Mon- 
tag Paper Company, Frank's description of the task at hand— about each 
of these matters Jim gave (or acknowledged having given) conflicting 
accounts. Yet despite such minor stumbles, the Negro refused to be either 
entangled or flustered. Sometimes defiant, sometimes mocking, occasion- 
ally even bored, Conley seemed to have taken Rosser's measure. And on 
those occasions when the lawyer appeared to have found an opening, the 
Negro shut him down by employing what would eventually be regarded as 
a signature phrase: 

"Jim, all these lies— I won't call them lies; I'll call them stories— did you 
notice them before you went to jail or afterwards?" 
"I disremember." 

"Jim, to whom did you make your first change in your confession?" 
"I disremember." 
"You disremember a whole lot, don't you?" 

To which Conley said nothing, although shortly thereafter, during a 
sifting of one of his other utterances, he gave the same answer: "I disre- 
member." 

By 11:00, it was plain that Rosser was not only never going to undo his 
quarry in this way but that if he stuck with the strategy any longer he'd 
lose the sole audience that counted. Reported the Georgian: "During Mr. 
Rosser's questioning, a number of the members of the jury were inatten- 
tive." Thus it was that as noon approached, Rosser resumed a more conven- 
tional line of attack, zeroing in on several improbable points in Conley's 
direct testimony concerning the actions he and Frank had purportedly 
undertaken at the factory during the minutes just before and just after Mary 
Phagan's murder: 

"You said yesterday that Frank showed you that day how to unlock the 
door, didn't you?" 
"Yes, sir." 
"Well, hadn't he showed you before?" 



PROSECUTION 25I 

"Yes, on Thanksgiving day." 
"Well, why did he do it again?" 
"I don't know." 

Similarly: 

"You say he told you he was going to stamp on the floor and when you 
heard him whistle to unlock the door and come upstairs?" 

"Yes, sir, he told me that after he told me to sit down on the box." 
"He had told you about these signals before, hadn't he?" 
"Yes, sir, on Thanksgiving." 
"Why did he repeat it?" 
"I don't know, sir." 



Yet once more, the forward momentum of Frank's counsel was short-lived, 
for on the larger issues, Conley would not be shaken. Indeed, his answers to 
Rosser's succeeding questions were essentially verbatim to those he'd given 
Dorsey. How did Frank look in the crime's immediate aftermath? "He had 
a cord and was trembling." What did he say? "He asked me if I saw that lit- 
tle girl come up here a while ago, and I told him yes, sir. I saw two of them 
come up and I saw only one go out. He said, 'Uh, huh. That little girl that 
didn't go out came up to the office. She went back to the metal room to see 
about some work. I went back there with her. I wanted to be with her and 
she refused me.' " Just that quickly, Conley had reiterated some of his most 
damaging assertions. Worse, he had lost none of his brashness. After direct- 
ing the Negro to his rendition of the disposal of little Mary's body, Rosser 
asked: 

"You got some burlap, didn't you?" 
"Yes, sir." 

"How big a piece?" 
"Well it was longer than me." 
"How wide was it— about two feet?" 
"I don't know, sir." 
"Well, what do you call two feet?" 

"This is what I call two feet," cried Jim, putting the toe of his right shoe 
against the heel of his left and lifting them high off the floor. 



The sight of Conley thrusting his feet in his interrogator's face prompted 
laughter throughout the gallery. Once order was restored, court adjourned 



252 AND THE DEAD SHALL RISE 

for lunch, concluding the morning on what for the defense was an igno- 
minious note symbolizing the futility of its entire enterprise. Observed the 
Journal: 

When a recess was ordered, Jim Conley had been [under] cross- 
examination for eight hours. Beyond showing to the jury that the negro 
had lied in the several affidavits given by him to the police and that by 
his own admission he had drunk a mixture of wine and beer on the morn- 
ing that Mary Phagan was murdered, Luther Z. Rosser had made little 
progress. Questions hurled at [the witness] with a view to trapping him 
were without effect. 

Shortly after court reconvened Tuesday afternoon, Judge Roan, acting at 
the defense's request, ordered the jury out, allowing Reuben Arnold to 
introduce an audacious motion that indicated he and Luther Rosser now 
despaired of breaking down the most inflammatory parts of Jim Conley's 
story. "We move first," declared Mister Rube after citing grounds of irrele- 
vancy, "to exclude the testimony of Conley relative to watching for the 
defendant, and we withdraw our cross-examination on the subject." 

"We also desire to withdraw from the record," Arnold added after glanc- 
ing at a section of transcript and citing the same grounds, "that part of Con- 
ley's statement in which he tells of Frank having told him that 'he was not 
built like other men.' " The lawyer then began to quote the pertinent pas- 
sages, but after uttering just a few words, he noticed that Lucille Frank, 
dreading what was to come, had started to cry, and he stopped. "Your 
honor," he said, indicating Frank's wife and mother with his hand, "I would 
prefer not to read this in the presence of these two ladies, and I therefore 
pass it to your honor that you may read it in silence." 

For the next few moments, the courtroom was inordinately quiet. Yet 
once the judge looked up, the battle was loudly and contentiously joined, 
for as each side understood, the trial's outcome could very well hinge on 
who prevailed here. 

From the state's perspective, Conley's account of having stood guard for 
Frank and his description of what he'd witnessed while doing so was any- 
thing but irrelevant, and right off the bat, Hugh Dorsey emphasized the 
point: 

The value of this evidence certainly is apparent to your honor. This evi- 
dence in all manner will be amply corroborated. This evidence goes to 
show who killed little Mary Phagan. Our case if this evidence is expunged 
will have been done inestimable damage. 



PROSECUTION 253 

That said, the solicitor turned to the legal issue at hand. Yes, he conceded, as 
"an original proposition," the testimony in question probably was inadmis- 
sible. But, he added pointedly, by failing to make "a timely plea," by, in fact, 
cross-examining Conley on the self-same testimony, the defense had for- 
feited the right to seek its removal. "Is it just," an indignant Dorsey asked in 
conclusion, "to let these men give this negro a gruelling examination and, 
after they have thrashed it out, to let them expunge his statement? Has it 
come to this?" 

Such was the force of Dorsey's argument that Reuben Arnold immedi- 
ately attempted to turn it right back around: 

There is no use in getting wrought up over this matter. I could, if I 
wanted to, tear up a little turf myself. The person who is hurt is the defen- 
dant. He is done grievous injury by this vile evidence. 

Then Arnold called attention to the underlying weakness in the solicitor's 
logic: 

The state admits that it is illegal evidence. The only ground that they 
want it retained on is that we didn't make timely objection. In a criminal 
case, you can never try a man but for one crime. That is the old, Anglo- 
Saxon way. I am coming under a general rule when I say this ought to be 
ruled out. 

And so the question was framed, but any prospect of a speedy resolution 
was quickly dispelled. "I will reserve my decision until I thoroughly con- 
sider" both positions, Judge Roan announced from the bench, whereupon 
the jury was returned. 



Though the gallery and a raptly attentive city knew that at least insofar as 
it concerned Conley's allegations of sexual misconduct and perversion, 
Leo Frank's lawyers had thrown themselves upon the mercy of the court 
(defense moves to strike most damaging testimony, screamed the 
Journal's banner), the twelve men who would decide the case remained 
unawares. Hence Luther Rosser pressed ahead at what the Georgian 
termed "his hopeless task." The transportation of Mary Phagan's body to 
the factory basement, the dispersal of her belongings in the trash, the return 
trip to the superintendent's second-floor office, the surprise appearance of 
Emma Clark and Corinthia Hall, the writing of the murder notes— Rosser 
challenged Conley's testimony on all of these matters. And each time, the 



254 AND THE DEAD SHALL RISE 

Negro withstood the onslaught, darting away here, delivering consistent 
responses there. 

Following so closely on the stumbles and rebuffs of the morning, this lat- 
est series of failures proved almost more than Rosser could bear, and as the 
afternoon wore on, he grew downright confrontational. Indeed, he often 
seemed motivated less by a desire to elicit information helpful to Frank 
than by a consuming need to unnerve Conley. During a sequence of ques- 
tions regarding the Negro's assertion that in the course of his grisly labors, 
he'd dropped little Mary's body on the metal room floor, Rosser cracked: 
"You are twenty-seven years old. Do you mean to tell me you can't carry 
1 10 pounds?" Returning to the subject of the cloth in which Conley claimed 
to have wrapped the child's lifeless form, the lawyer, in an attempt to 
pin down the sort of fabric from which it was made, snorted: "I suppose 
you don't know whether cloth is woven or knitted or just grows." Then 
there was the much commented upon topic of Jim's recently refurbished 
wardrobe. Whatever others may have thought of the makeover, Rosser 
viewed it as another indication of fraudulence, grumbling: "They put some 
new clothes on you so the jury could see you like a dressed-up nigger." The 
only thing the lawyer got out of Conley by way of these jibes was the admis- 
sion that it was he who'd defecated at the base of the elevator on the day of 
the murder. "As to how that dung came to be in the shaft," the negro 
recalled, he had gone down the ladder at the suggestion of the previously 
mentioned peg-legged drayman, stopping "right by the side of the elevator, 
somewhere about the edge of it." Yet what, if anything, Frank's lead counsel 
made of this intelligence is uncertain, for as with the earlier testimony con- 
cerning the unsavory substance, he did not follow up. 

Rosser concluded his work Tuesday by laying the groundwork for the 
appearance of the defense's most anticipated witness— W. H. Mincey. Tak- 
ing pains to get Conley on the record regarding the smallest details in the 
insurance agent's much publicized affidavit alleging a suspicious April 26 
run-in with the Negro, the lawyer inquired: 

"Did you meet a man named Mincey [who] said you promised to take 
some insurance with him?" 

"No, sir." 

"Didn't you tell him that you could not take any insurance— that you 
were in trouble?" 

"No, sir." 

"Didn't you say that you had killed a girl and that you didn't want to kill 
any more people?" 

"No, sir." 



PROSECUTION 255 

"Didn't he say that one a day would be 365 a year?" 
"No, sir." 

For Rosser, Conley's denials— contradicting, as they did, the key points in 
Mincey's story— provided reason for optimism. So, too, did the fact that 
while making them, Jim evinced his first signs of anxiety. Reported the 
Georgian: "He moved uneasily in his seat. He refused to meet the eyes of 
his inquisitor. He fidgeted with his hands." Now more than ever, in short, 
the defense was justified in believing that in the insurance agent, it had at its 
disposal a powerful antidote to the state's Negro. 

Tliesday ended, then, with a triumph for Rosser and Arnold, although 
the day's earlier innings belonged decisively to Dorsey. There was, however, 
no clear victor here, nor could there be until Judge Roan rendered his deci- 
sion regarding the admissibility of the sexually charged portions of Con- 
ley's testimony. Observed the Constitution: 

Would Judge Roan rule for the state or the defense? This was the ques- 
tion which was asked by everyone of his neighbor. Would the state be 
allowed to still further press the advantage it had made, or would it have to 
close deprived of this evidence? The air was full of doubt and uncertainty. 

By nine Wednesday morning, a throng more than double the court- 
room's capacity had congregated in front of the old city hall, filling the side- 
walks and spilling into the streets. Once again, however, Atlanta would 
have to wait. Shortly after gaveling the session to order, Judge Roan an- 
nounced that he was still studying the defense motion, deferring his deci- 
sion until following the noon recess. 

Thus, during the next few hours, the trial would proceed in a climate of 
unbearable anticipation, but proceed it did, for a key piece of business 
remained unfinished. 

By way of wrapping up his cross-exam of Jim Conley, Luther Rosser 
devoted a substantial chunk of time simply to reading the Negro's affidavits 
aloud, ending each installment with the question "This is what you swore, 
isn't it, Jim?" Repeatedly, Conley would answer, "Yes, sir," whereupon the 
lawyer would pause, allowing the jury to ponder the glaring discrepancies 
among the various statements. Then, following a few inquiries into Jim's 
behavior around the pencil factory in the days after Mary Phagan's murder, 
inquiries plainly designed to set the stage for several more defense wit- 
nesses, Rosser at last returned to his seat. 

Not that Conley's interminable turn upon the stand was done. In fact, as 
soon as his tormentor sat down, Hugh Dorsey was on his feet, initiating a 



256 AND THE DEAD SHALL RISE 

brief but critical redirect examination. Its purpose: to present a solution to 
one of the case's most vexing mysteries, a puzzle that from the start had 
stumped investigators and lawyers alike. 

"Did you ever see Mary Phagan's pocketbook or mesh bag?" the solici- 
tor began. 

"Yes, it was on the desk in Mr. Frank's office when I went there to write 
the notes." 

"Describe it." 

"It was a wire-ish looking pocketbook like the ladies carry, light-colored 
and had little chains on it for the ladies to hold to." 

"What did Frank do with it?" 

"He put it in the safe." 

Having thereby elicited testimony that if true not only further implicated 
Frank in the murder but destroyed the defense's theory that Conley had 
stolen the purse, Dorsey had gotten everything he had wanted from his 
Negro and turned him back over to Rosser. 

"Why didn't you tell all of this when you were telling the whole truth to 
the detectives?" Frank's counsel demanded incredulously. 

"I don't think they asked me." 

"When did you first tell any detective about it?" 

"I don't remember." 

Upon hearing this exceedingly tired retort, Rosser's face darkened with 
rage. But he said nothing, and following a couple of innocuous final queries, 
the state's star witness was excused. 

The time was 11:10, and all told, Conley had testified for more than 15 
hours, over 13 of them under cross-examination. Still, his ordeal was not 
done, for no sooner had he been escorted from the courtroom than he 
found himself surrounded by reporters. "Jim," advised William Smith, who 
by this point had reached his client's side, "don't you say a word to anybody, 
do you hear?" The newspapermen, however, made such a noise that the 
lawyer— on the condition that he got to do the questioning— relented. 

"How did you like it, Jim?" Smith asked. 

"I liked it fine." 

"What do you think of Rosser?" 

"He shore goes after you, don't he." 

"What did you want most, Jim, while Rosser was grilling you?" 

"Outside of wonderin' when he was goin' to quit," Conley replied with a 
wide smile, "I guess I wanted to smoke most." 

With that, Smith produced a cigarette, and Jim fired up, exhaling slowly. 
Shortly thereafter, the lawyer, realizing that his client was exhausted, dis- 
missed the press, leaving Conley alone with a stack of newspapers in which, 
contrary to his countless assertions that he could not make sense of the 



PROSECUTION 257 

printed word, he quickly immersed himself. Meanwhile, several deacons 
from the Reverend Henry Hugh Proctor's First Congregational Church— 
which, as it had done with other poor black clients of Smith's, had agreed to 
pay for representation for Conley— arrived on the scene and handed the 
lawyer an envelope containing his fee in full— $40. 



Court reconvened at two Wednesday afternoon outside the jury's presence. 
Over lunch, Judge Roan had studied several conflicting legal precedents, 
among them one provided by Hugh Dorsey in which a Georgia court had 
overruled a defendant's belated objection to prejudicial testimony, allowing 
it to stand. The magistrate in that action: Leonard Roan. Yet poorly as this 
fact augured for Leo Frank, it was balanced by the report that entering into 
his deliberations, the judge had confided that he considered the allegations 
in question to be, at heart, immaterial. 

Which was why, when Roan looked down from the bench and an- 
nounced, "I have serious doubts as to the admissibility of this testimony as 
an original proposition," the defense had good reason to believe the ruling 
was favorable. But in his next breath, the judge dashed any such hopes. "I 
am going to allow this testimony to remain," he declared. "It may be 
extracted from the record, but it is an impossibility to withdraw it from the 
jury's mind." 

Before Roan could say another word, the packed courtroom exploded 
in what one reporter described as "a riot of applause." Some spectators 
hooted, others pounded their feet on the floor, still others shouted the news 
out the windows. The demonstration was so spontaneous and intense that 
the judge initially appeared too astonished to react. After a few seconds, 
Reuben Arnold leaped from his seat, roaring, "I will ask for a mistrial if this 
continues." But upon realizing that with the jury withdrawn, such a motion 
was groundless, the lawyer amended his request, sputtering, "I shall ask that 
the court be cleared." Soon enough, however, Roan recovered his wits, and 
by sternly admonishing the gallery while directing deputies to remove the 
most vociferous offenders, he restored order. Yet there could be no mistak- 
ing the significance of what had transpired. Not only had the decision done 
severe damage to the defense (roan's ruling heavy blow, boomed the 
Georgian), but the throng's boisterous response indicated that Atlanta's 
sympathies had turned overwhelmingly against Leo Frank. 



With Jim Conley's testimony fully on the record, Hugh Dorsey, intent upon 
completing a crucial examination that had been cut short the previous week, 
resummoned Dr. Henry F Harris, and for the remainder of the afternoon, 



258 AND THE DEAD SHALL RISE 

the still-ailing physician, ensconced in an upholstered armchair brought in 
for his comfort, further detailed the microscopic observations he'd made 
during Mary Phagan's autopsy. Considering the pulse-quickening quality of 
Conley's turn upon the stand, Harris's cool assertions regarding the time of 
the child's murder (a lack of hydrochloric acid in the stomach offered added 
proof that death had occurred within 45 minutes of eating) came across as a 
touch academic. Yet in a sense, this was just the note the state wanted to 
strike. The Georgian's Fuzzy Woodruff observed that Jim Conley's story was 
"a ragtime composition, with the weirdest syncopations, and then came Dr. 
Harris right on his heels and gave evidence full of soundness and learned- 
ness.To the spectators, it seemed that they had just heard 'Alexander's Rag- 
time Band' played and then a Bach fugue for an encore." 

And what made the move all the more effective was the fact that during 
his cross-examination of Harris, Reuben Arnold struggled. Yes, the physi- 
cian admitted, "the science of digestion is rather a modern thing." And true, 
he added, "every individual is almost a law unto himself." But save for these 
broad concessions, Harris stuck to his position. Noted the Constitution: 
"Arnold failed to develop anything of material benefit to the defense." 



Thursday morning, Hugh Dorsey produced the white witness whose job it 
was to verify Jim Conley's assertion that Leo Frank regularly entertained 
prostitutes in his pencil factory offices. 

About 35 years old, brown-haired, with heavy eyebrows, a thin mous- 
tache and tightly compressed lips, C. Brutus Dalton, a carpenter for the 
Western and Atlantic Railroad, gave every appearance of being a hard 
case— considering the purpose of his testimony, just what the solicitor 
wanted. 

"Do you know Leo M. Frank?" Dorsey began. 

"Yes." 

"Do you know Daisy Hopkins?" 

"Yes." 

"Do you know Jim Conley?" 

"Yes." 

"Did you ever go to Frank's office with Miss Daisy Hopkins?" 

"Yes." 

"Was Frank there?" 

"Yes." 

"Did you ever go down in the basement?" 

"Yes." 

"Where in the basement?" 



PROSECUTION 259 

To this, Dalton took a pointer and turning to Bert Green's diagram indi- 
cated the plywood enclosure where following Mary Phagan's murder the 
police had discovered a cot and numerous female footprints. 

"Did you ever see Conley on those visits?" 

"Yes." 

"Who was with Frank?" 

"Why, sometimes two and sometimes one young woman." 

With that, Dorsey turned the witness over to the defense. 

From Luther Rosser's perspective, Dalton presented a now familiar 
problem— a vague and disreputable witness whose very vagueness and dis- 
reputability ended up validating his allegations. Nonetheless, the lawyer did 
what he could with him, rapidly ascertaining that not only was he unsure of 
the dates he'd visited Frank's office but that he could not say with certainty 
whether the women he'd seen there— far from being fallen creatures— were 
not such employees as the plant stenographer. A couple of aspects of Dal- 
ton's story thus blunted, Rosser turned his attention to a topic that Dorsey 
had purposely ignored. To call the witness a career criminal would have 
been harsh but not overly so. As he now admitted, he had been arrested 
numerous times for offenses ranging from stealing corn and cotton from 
farmers to burglarizing a machine shop, along the way serving a sentence on 
the chain gang. Rosser's point: Dalton wasn't the type with whom Frank 
ordinarily consorted. 

The last word, however, belonged to Dorsey, who during his redirect 
examination obtained several damning particulars. For one, Dalton backed 
up Conley's account of how the office trysts worked, asserting that the 
Negro had stood guard in the lobby and generally received a quarter tip for 
his services. For another, he revealed that Frank kept "Coca-Cola, lemon 
and lime and beer" on the premises. Finally, as to the possibility that the 
women present on the Saturdays in question might have been there in an 
official capacity, he simply stated: "I never saw the ladies in his office doing 
any writing." 

Once Dalton left the stand, Dorsey, indicating that his work was almost 
done, undertook the task of placing various exhibits— among them the bot- 
tles containing cabbage extracted from Mary Phagan's stomach— in evi- 
dence. Then he asked Rosser and Arnold to produce the National Pencil 
Company's financial records, including the factory cash and bank books. 
Upon receiving the lawyers' assent, the state rested, leaving the defense in 
an awful spot. Reported the Georgian: 

Every single thing that Solicitor General Hugh Dorsey declared in 
advance that he would get before the jury is there now. 



260 AND THE DEAD SHALL RISE 

One by one the prosecutor has forged the links in the chain that he 
maintains fixes the guilt of the Phagan murder on Leo Frank and Leo 
Frank alone. 

And the strongest of these links was, of course, Jim Conley's testimony, 
which in the end dazzled even the Georgian's James B. Nevin, who con- 
ceded that its many minor mendacities aside, the Negro's account could in 
the main be true, concluding: 

If the story Conley tells IS a lie, then it is the most inhumanly devilish, 
the most cunningly clever, and the most amazingly sustained lie ever told 
in Georgia! 



ELEVEN 



Leo Frank's lawyers, declared the Georgian, now faced a single task: 
"the undoing of conley. Without Conley, the State is rendered 
helpless." In the same breath, however, the same paper argued that 
"the biggest element in the case is the time element," asserting that if the 
defense could establish that Mary Phagan met her death at some point later 
than 12:05 on April 26, the narrative Hugh Dorsey had so seamlessly woven 
would unravel. Others, though, believed that the damage inflicted by 
the prosecution was such that Luther Rosser and Reuben Arnold had no 
choice but to pursue a more dangerous tack. "Not one in a hundred defen- 
dants place their character in issue when on trial for murder," noted the 
Constitution, "but a condition has arisen in the Frank case which may cause 
his attorneys to think it wise to take this step. It came when James Conley 
testified to misconduct on the part of the defendant which would brand him 
as an outcast among men." The alternatives were various and risky. All 
of which may explain why when Dr. Leroy Childs, the first man up for 
Frank, walked into the courtroom just before noon on Thursday, Arnold 
told reporters: "Further than this witness, I do not know what line we will 
pursue at the present." 

A 1906 graduate of the University of Michigan medical school, Childs 
had been in surgical practice in Atlanta for five years. His appearance on the 
stand indicated that the defense would initially attack the state's time line. 
Hoping that the young surgeon could counter Dr. Henry F Harris's critical 
findings regarding the hour of Mary Phagan's demise, Arnold directed his 
attention to the foodstuff upon which the calculations were based, inquir- 
ing: "Is cabbage considered a hard food to digest?" 

"It is generally considered the hardest," replied Childs, citing the veg- 
etable's high cellulose content. 

Whereupon Arnold produced the vial containing the cabbage removed 
from little Mary's stomach, which Harris maintained had been ingested no 
more than 45 minutes before the girl died. "Look at this cabbage," the 
lawyer instructed. "Was it well masticated?" 

"Not very well." 

"Where does cabbage begin to be digested?" 



262 AND THE DEAD SHALL RISE 

"In the mouth, when ptyalin in the saliva acts on it." 

"Does it keep up in the stomach?" 

"No, the acids of the stomach neutralize the ptyalin." 

"Then where is cabbage really digested?" 

"In the small intestines." 

"When it goes out of the stomach, it is really undigested, is it not?" 

"Yes. It may pass out of the body entirely in the undigested form." 

"Are there a great many things that retard digestion?" 

"Yes, the psychic causes— fright, anger and sudden mental excitement." 

Here, Arnold once again held up the vial containing the cabbage in ques- 
tion. Then, in a query constructed so as to remind the jury of the lengthy 
period that had elapsed between the date of Mary Phagan's murder and the 
date her remains were autopsied, he demanded: "Take a human body that 
has been interred nine days. Take out the stomach and in the contents find 
cabbage and certain remnants of wheat bread. Could you hazard an opin- 
ion or guess that the person had taken it into his stomach one-half or three- 
quarters of an hour before death?" 

"I certainly could not," answered Childs. 

"How long would you say it was possible for cabbage like this to stay in 
the stomach?" 

"I have seen cabbage less digested than that which had been in the stom- 
ach for twelve hours." 

From the defense's perspective, Childs's observations could not have 
been more helpful, and after eliciting a couple of other tidbits (among them 
that the bruise to little Mary's eye could have been caused by a lick to the 
back of her head and that the inflammation in her vagina could have been 
produced by a digital examination made by Dr. J. W. Hurt during his pre- 
liminary postmortem), Arnold turned the surgeon over to Dorsey for what 
proved to be an ineffectual cross-examination. Childs held to his position 
that the time of Mary Phagan's death could not be pinpointed with any- 
where near the precision claimed by the state. Reported the Georgian: 
"Childs's testimony if believed by the jury served utterly to demolish the 
most sensational declaration by Dr. Harris." 

Having delivered a strong first blow to the prosecution's murder-day 
chronology, Frank's lawyers called a familiar and problematic figure. Dur- 
ing his initial turn upon the stand, Harry Scott had given the defense fits, but 
it would now use him to launch its assault on Jim Conley. After establishing 
that the Pinkerton agent had been at headquarters in mid-May when Mrs. 
Arthur White tentatively picked Conley out of a lineup as the Negro she'd 
seen lurking in the pencil factory lobby on April 26, Luther Rosser in- 
quired: "Was there any effort on Jim's part to change his features as if he 
desired to escape identification?" Though Dorsey successfully objected to 



DEFENSE 263 

the wording of this question, once Frank's counsel rephrased it, Scott 
replied: "He was chewing his lips and twirling a cigarette in his fingers. He 
didn't seem to know how to hold on to it. He could not keep his feet still." 
The implications could not have been clearer. Conley had been more nerv- 
ous at the prospect of being placed at the scene of the crime than had been 
previously made known. 

Rosser's primary interest, however, was in four subsequent headquarters 
gatherings in which Scott had played a role. These, of course, were the ses- 
sions that produced Conley 's conflicting affidavits. The lawyer's hope was to 
cast doubt on the entire process, accomplishing what he had so plainly 
failed to achieve during his cross-examination of the Negro. 

"Didn't Conley verbally deny to you on May 18 that he had any con- 
nection with the murder?" Rosser began after glancing at Jim's statement 
of the same date. 

"Yes." 

"Give us a picture of what you and [John] Black did to him." 

"We talked pretty rough to him." 

"You gave him the third degree, didn't you?" 

"I wouldn't say that we use the third degree." 

"Didn't one of you wheedle him and the other sympathize with him?" 

"I'll admit that we used a bit of profanity." 

"How long was the grilling you gave him that Sunday?" 

"Two hours." 

A sense of the detectives' techniques thereby conveyed, Rosser began to 
question Scott on the topic of how Conley's narrative had evolved. After 
reaffirming that in his affidavit of May 24, Jim, while confessing to a part in 
the affair, had asserted that Frank dictated the murder notes the Friday 
before the crime, the lawyer asked: "On May 27, how long did you sit with 
him?" 

"Five or six hours." 

"You impressed upon him the fact that his May 24 statement was not 
plausible and that his story of writing the notes on Friday would show pre- 
meditation, didn't you?" 

"Yes." 

"You saw him again on May 28?" 

"Yes." 

"You stayed with him all day that time, explaining that his statement 
was absolutely unbelievable?" 

"Yes." 



264 AND THE DEAD SHALL RISE 

"On this day, he made another statement?" 
"Yes." 

"This time, he changed his dates from Friday to Saturday?" 
"Yes." 

"He said it was his last statement, didn't he, and that he had made up his 
mind to tell the truth?" 
"Yes." 

Scott was not relating much that was new here, but Rosser was bringing 
attention to the investigators' participation in the shaping of Conley's story. 
For the first time, the jury was hearing a straight version of how it had all 
worked, one unencumbered by the evasions and memory lapses that had 
marked the Negro's telling of the tale. Accordingly, Rosser steered the 
Pinkerton agent to the subject of the May 29 affidavit, the one that Jim had 
sworn was the affidavit to end all affidavits. 

"In that statement, he said nothing about watching for Frank, did he?" 
"No." 

"Did you try to get him to tell about the mesh bag of Mary Phagan?" 
"Yes. He denied having seen it." 

"Did he tell you anything about Frank putting it in his safe?" 
"He told me nothing about it." 
"Did he tell you he'd seen Mary Phagan that day?" 
"No." 

"Did he tell you he heard someone tiptoe to Frank's office?" 
"No." 

"Did he tell you he heard somebody stamp, and that then he went to 
sleep and the next thing he heard was the whistling?" 
"No, sir." 

"Did he tell you about Frank showing him how to lock the door?" 
"No, sir." 

Each of these responses ran counter to an allegation Conley had ulti- 
mately leveled from the stand. After touching on several other instances in 
which the Negro had evidently held back on the detectives, Rosser returned 
to his seat, and Dorsey initiated what proved to be another unavailing 
cross-examination. True, the solicitor secured Scott's endorsement of Con- 
ley's final version of what had transpired on April 26. But he could not 
reverse the overall impression, meaning that when the Pinkerton agent 
stepped down and court recessed for the day, the defense had succeeded in 
introducing a note of skepticism regarding the manner in which the all- 
important affidavits had been obtained. Observed the Constitution: "Scott's 



DEFENSE 265 

statement created a telling effect, and it is said to have caused the wavering 
of opinion [concerning] the negro's story." 



On Friday, Frank's lawyers brought to the stand the woman whom Conley 
claimed had been one of the superintendent's paramours. Daisy Hopkins 
was an angular country gal clad in a yellow straw hat and a striped cotton 
dress that, according to the Georgian, "looked a bit too short." While taking 
the oath, she initially raised her left hand, and throughout her testimony, she 
chewed gum. But lack of refinement notwithstanding, this rag and bone and 
hank of hair was, as Reuben Arnold quickly established, married. More- 
over, from October 191 1 through June 191 2, she had worked in the second- 
floor packing room of the National Pencil Factory, and during that time, she 
told the lawyer, Frank never spoke to her and she "never did speak to him." 
That said, Arnold asked: "Did you ever go into Frank's office and drink beer 
and cold drinks with other women?" 

"No. I never went into his office, and I don't drink." 

"Do you know C. B. Dalton?" 

"I know him when I see him." 

"Did you ever go to the pencil factory with Dalton?" 

"No. I never did." 

"Did you introduce him to Mr. Frank?" 

"No, I did not." 

"Did you ever go into the factory basement with Dalton?" 

"No. I don't even know where the basement is. I never have been in it." 

Considering the havoc Conley's assertions regarding Daisy and Frank 
had wrought, her blanket denial of any untoward involvement with either 
the superintendent or Dalton gave every promise of constituting a sig- 
nal victory for the defense. Yet no sooner had Dorsey started his cross- 
examination than this victory was all but snatched away. Right off the bat, 
the solicitor, by inquiring into whether the woman recalled the place where 
she had exchanged vows or even knew her husband's initials, insinuated 
that she may have been wed in name only. Then the solicitor expressed 
interest in a certain medical condition for which "Miss Hopkins"— as he 
insisted upon calling her— had been seeking treatment. Dorsey was imply- 
ing that Daisy suffered from venereal disease, an implication her hesitant 
and vague reply of "stomach trouble" merely reinforced. Finally, the solici- 
tor asked point-blank: "Have you ever been in jail, Miss Hopkins?" 

"No, sir," she answered after a long pause. 

"Why, Miss Hopkins, didn't this man get you out of jail?" Dorsey 
rejoined, indicating his assistant, Newt Garner. 



266 AND THE DEAD SHALL RISE 

"No, sir, but he was along." 

"Well, you were in jail now. And who got you out?" 
Here, Daisy pointed to William Smith, who, as it happened, had repre- 
sented her. 

"What were you in jail for, Miss Hopkins?" 

"Somebody told a tale on me," Daisy responded. 

"Weren't you there for reasons of immorality?" 

"They accused me," the woman at last admitted, "of fornication." 

Though Arnold succeeded in subsequently establishing that Daisy had 
never been convicted and was released after paying a fine, the fact that her 
trustworthiness and character were so plainly questionable rendered her, in 
the end, of dubious value, and she stepped down having, in all likelihood, 
marginally reinforced Conley's story. 

In the wake of Daisy Hopkins's disappointing turn upon the stand, the 
defense called W. M. Matthews, the motorman on the English Avenue trol- 
ley that brought Mary Phagan to town on April 26, and Arnold again set 
about attacking the state's time line, eliciting the potentially pivotal asser- 
tion that little Mary did not get off the car until 12:10— a full five minutes 
after the prosecution contended that she was dead. Frank's lawyer then 
directed Matthews to a topic of nearly equal import, obtaining his assur- 
ance that the girl's self-professed beau George Epps, far from sitting beside 
her on the ride, wasn't on board. With that, Arnold turned the motorman 
over to his counterpart. 

Dorsey took issue with just about everything Matthews had said, scoffing 
at his ability to remember four months after the fact the precise hour Mary 
Phagan had exited the trolley and forcing him to concede that if asked to 
describe Epps, he would be hard-pressed to provide any distinguishing 
characteristics. Yet these triumphs notwithstanding, the solicitor's efforts to 
undermine the motorman's testimony ultimately failed. For one thing, 
Matthews evinced no doubts regarding the details of his April 26 run, even 
recollecting a conversation he'd had with little Mary. For another, once 
the motorman stepped down, Arnold summoned W. T. Hollis— on the day 
of the murder, the conductor on the English Avenue car— who corrobo- 
rated his coworker on every significant point, including the one about the 
Epps boy not being on the trip. All of which, of course, augured well for 
the defense, not only raising the hoped-for doubts regarding the state's 
chronology but shining a harsh light on the claims of two of its most impor- 
tant witnesses. Reported the Georgian: 

If the testimony of the street car employees is accurate, it completely 
upsets Jim Conley's story that he saw Mary Phagan enter the factory 



DEFENSE 267 

before Monteen Stover came in. By the Stover girl's own testimony she 
entered the factory at 12:05 o'clock and left at 12:10 o'clock. Thus, she had 
gone by the time the Phagan girl arrived. 

It also serves to destroy the significance of the Stover girl's testimony 
that Frank was absent from his office when she arrived there. As Mary 
Phagan had not yet arrived, according to the testimony of the street car 
men, it could hardly be regarded as a suspicious circumstance that Frank 
was not in his office, if it develops that he really was not. 

Heretofore, through a myriad of witnesses but primarily through the fac- 
tory diagram produced by the Georgian's Bert Green, Hugh Dorsey had 
determined what the jury knew about the layout of the crime scene. The 
plant basement, metal department and office— in the eyes of the twelve 
men who would determine Frank's fate, these spaces existed only as the 
solicitor had pictured them. Now, however, the defense would challenge 
the prosecution's portrait. It started by calling a practitioner of that most 
exacting profession, civil engineering. 

Within minutes of taking the stand, Albert Kauffman was unscrolling 
blueprints of the National Pencil Factory on the jury-box rail and, at Reuben 
Arnold's direction, pointing out potentially significant elements of the 
plant's design that the state had failed to mention. To begin with, at the rear 
of a long hallway leading back from the first-floor elevator lobby, a previ- 
ously unremarked-upon five-foot-wide chute opened into the basement 
only a few yards from where Mary Phagan's remains were found. Chiefly 
used for sliding heavy boxes to the lower level, this chute, declared the engi- 
neer in a phrase that made the implications obvious, "was big enough for 
one or two human bodies or even a pony." Then there were the swinging 
doors through which employees entered and exited the metal department. 
As Kauffman's schematics plainly revealed, the doors were glassed in at the 
tops— yet another impediment to the room's utility as a trysting place. Simi- 
larly, the plans showed that Frank's office was hardly the spot for afternoon 
beer parties with women of ill repute— the windows lacked curtains or 
shades. Last but not least, there was the matter of the office safe. "The safe is 
four and one-half feet high," the engineer asserted, adding that "a person 
five feet and two inches tall could not see over [it]." Simply put, even if the 
superintendent was seated at his desk on April 26, Monteen Stover could 
well have missed him if the safe's door was open. 

In his examination of his next witness, a photographer named John 
Quincy Adams, Arnold again treated the jury to a visual display, this time in 
the form of eight-by-ten glossies of the factory. First came a shot of Frank's 
inner office, the view of the desk blocked by the open safe door. Then one of 
the metal-department floor that brought home the close proximity of the 



268 AND THE DEAD SHALL RISE 

women's restroom to the spot where bloodstains were discovered. Finally, 
an image of the gears and pulleys at the top of the elevator shaft, stilled 
here but in the jurors' minds, or so the defense hoped, a clangorous rebuke 
to Jim Conley's claim that he and Frank had managed to transport little 
Mary's body in the lift without anyone having heard. 

Though the state did not concede the testimony of Kauffman or Adams, 
Frank Hooper— who henceforth would alternate with Dorsey in the con- 
ducting of cross-examinations— was able to do little with either witness. 
True, he got Kauffman to admit that the famous factory scuttle hole was, at 
two feet by two feet three inches, too small for someone to have carried 
Mary Phagan's body through. And yes, he induced Adams to allow that dur- 
ing the several months that elapsed between April 26 and the day he took 
his photographs of the plant, someone could have rearranged the office fur- 
niture so that the open safe door obscured Frank's desk. But as court 
recessed for lunch, the consensus was that at the least, Arnold had suc- 
ceeded in challenging the prosecution's depiction of the crime scene, and at 
the most, had laid the groundwork for a new theory of what had transpired. 
Proclaimed the Constitution's page-one headline: 

Defense Will Seek to Show That Mary Phagan's Body Was Tossed Down a 
Chute in Rear of Pencil Factory And Not Taken Down by Elevator as the 
State Insists. 

Shortly after the proceedings reconvened Friday afternoon, Frank's 
lawyers unveiled the exhibit that they believed would settle the matter 
of the crime scene's appearance and configuration for all time— a six- 
and-one-quarter-foot-long scale model of the National Pencil Factory con- 
structed out of pasteboard by an expert pattern maker. Like Bert Green's 
diagram, the model provided an exposed view of the plant's inner workings. 
Also, it was intricately detailed, featuring everything from dollhouse-sized 
furniture in the superintendent's office to a miniature boiler and trash pile 
in the basement. Yet unlike Green's diagram, the model was free from such 
editorial embellishments as Maltese crosses, dotted lines and written keys. 
From the defense's vantage, here was a three-dimensional representation 
based solely on the facts, and once it was situated on the courtroom floor in 
front of the jury box, Reuben Arnold summoned assistant plant superin- 
tendent N. V. Darley to elucidate the ways in which those facts undermined 
the prosecution's theories. 

Darley had done Leo Frank a world of good when testifying for the state, 
and he came through for his boss once again. Arnold began by directing his 
attention to a previously undiscussed section of the factory building— a 
self-contained first-floor enclosure running from the rear of the elevator 



DEFENSE 269 

shaft to the back wall. For several years, this space had comprised the work- 
room of the Clark Woodenware Company, a manufacturer of cartons 
and boxes, but since January, when the concern moved to quarters across 
town, it had been vacant. Though the empty chamber's connection to the 
Phagan murder initially seemed obscure, Mister Rube immediately zeroed 
in on the relevant detail— a presumably sealed entrance just behind the 
spot where Jim Conley claimed to have been sitting on the morning of 
April 26. 

"Has this door been kept locked, Mr. Darley?" 

"We kept it locked after the Clark Woodenware Company moved out, 
[but] two or three days after the murder we found it broken open." 

Arnold then asked whether the former Clark Woodenware location pro- 
vided any access to the basement. Yes, it did, responded Darley, indicating 
an opening that represented a never before mentioned second scuttle hole. 
Here was yet another conduit through which little Mary's body could have 
been dropped into the cellar. When several of the jurors stood to get a bet- 
ter look, it became plain they were at least contemplating the possibility 
that one of the prosecution's central hypotheses might be in error. 

During his cross-examination of Darley, Hugh Dorsey labored to quell 
such doubts. But despite his eliciting the admission that for all the assistant 
superintendent knew, it could have been the investigating officers who 
broke into the long-shuttered Clark Woodenware space, the main point 
remained unchallenged. For now, at least, the defense's version of reality 
was ascendant, and though more remained to be said on the topic, once 
Darley stepped down, the factory model was removed from the courtroom. 

Arnold used Friday's concluding witness, the National Pencil Company 
day watchman E. F. Holloway, to resume the assault upon Jim Conley, 
obtaining in rapid succession statements that undercut a number of the 
Negro's most deleterious charges. After asserting that he had not missed 
work since June 191 2, Holloway declared that he had never seen the fac- 
tory's front door locked on a Saturday. "I always kept the door," he said. "I 
never turned it over to Conley or anyone else." Holloway also scoffed at the 
Negro's claim that Daisy Hopkins visited the plant on weekends. "I have 
never known Mr. Frank to have any woman on Saturday excepting his 
wife," he testified. "She came there on Saturdays and went home with him 
about once a month." And besides, he added in response to a related ques- 
tion, so many factory employees— among them salesmen bringing in orders 
and laborers servicing machinery— dropped by unannounced on weekends 
that even had Frank been thus inclined, the office would have been the last 
place to indulge in "immoralities." Then there was Conley's story alleging 
wild goings-on in the plant on Thanksgiving Day 1912. Holloway utterly 
dismissed this tale. Not only had he been there until noon on the holiday, 



270 AND THE DEAD SHALL RISE 

and not only had he not seen the white-shoed, white-stockinged creature 
the Negro had sworn was the guest of honor, but the likelihood that a 
female would have been out in such a summery getup was slight— Atlanta 
had been hit by a snowstorm that afternoon. Finally, Arnold asked Hol- 
loway if he'd ever witnessed any of the horseplay between Frank and Con- 
ley to which the Negro had attested. Replied the day watchman: "I never 
saw Mr. Frank goose, pinch or joke with Conley." 

Holloway's testimony constituted the most potent attack yet on the 
state's Negro, but by the time Dorsey finished with him, his motives— if not 
his veracity— would be in serious dispute. Though Holloway's pro-Frank 
sympathies had been apparent since late May when, along with several 
other pencil company employees, he'd proclaimed his belief in Jim Conley's 
guilt, the solicitor suspected that the day watchman, far from simply taking 
sides, had tried to tamper with the prosecution's case. Specifically, he 
believed that Holloway had attempted to persuade Newt Lee's predecessor 
as night watchman to announce that the superintendent had been in the 
habit of telephoning him at work after hours, a declaration that would, of 
course, have made the much discussed call to the factory the evening of 
Mary Phagan's murder seem less sinister. Hence the solicitor began by 
grilling Holloway as to this point, and while the day watchman denied any 
impropriety, he was, according to every account, badly rattled. This, how- 
ever, was just the prelude. Dorsey followed up by accusing Holloway —who 
had, after all, spotted Conley washing the infamous red stains from his 
shirt— of being actuated by nothing more than a desire for the reward 
money. Here again, the day watchman repudiated the charge, but when the 
solicitor asked him whether he'd told the police that Jim was "his nigger," 
thereby implying that if Conley was convicted he should be the financial 
beneficiary, he conceded that he'd made such a statement. Bluntly put, Hol- 
loway was anything but a disinterested party, and regardless of the good 
he'd done the cause at the outset, he departed the stand, in the Georgian's 
estimation, having "partly spoiled" what was otherwise a "very favorable 
day for the defense." 



Saturday's half-session opened with the return of the barefooted newsboy, 
George Epps. Initially, the subject of Reuben Arnold's examination— an 
interview George and his sister Vera had given to the Georgian's John 
Minar on the Sunday little Mary's body was discovered— appeared not to 
promise much. But after establishing that the boy recalled meeting with the 
reporter, the lawyer promptly led him onto thin ice, demanding: "Did he 
ask you and your sister when was the last time you saw Mary Phagan, and 
did your sister say Thursday?" 



DEFENSE 27I 

Confronted by this direct challenge to his story of having seen the victim 
on Saturday, April 26, Epps hastily replied, "I wasn't there then," adding 
that just before Minar initiated the exchange at issue, he'd momentarily 
ducked out. 

"Weren't you there when he asked that question?" Arnold pressed. 

"No. I was not." 

While Frank's counsel believed he had caught George in a crucial lie, he 
would leave it to his next witness to bring the point home. 

Like most of the Georgian's journalistic mercenaries, John Minar was a 
veteran of numerous Hearst newspaper battles, and Arnold used him to 
maximum effect by posing essentially the same question he'd posed to 
Epps. The reporter's response was that George had very definitely been 
with his sister as he'd asked them when they last saw little Mary. Vera, he 
confirmed, had answered Thursday. 

"When did George Epps say he saw her?" 

"The boy said he saw her occasionally going to work in the mornings." 

"Did he claim or breathe a thing about seeing her after Thursday?" 

"He did not." 

During his cross-examination of Minar, Frank Hooper endeavored to 
cast aspersions on the reporter's reliability by emphasizing the Georgian's 
pro-defense editorial stance, at one point inquiring: "Haven't you had direc- 
tions to get everything possible that is favorable to the defendant?" Yet this 
line of attack accomplished little, for as Minar coolly reminded Dorsey's 
assistant, at the time of the Epps interview, Newt Lee was the primary sus- 
pect. Whereupon Hooper returned to his seat, having done nothing to blunt 
the burgeoning impression that young George's account of riding into town 
with Mary Phagan on the day of the murder was a fabrication. 

Not only was Herbert Schiff, the National Pencil Company's other as- 
sistant superintendent and Saturday's final witness, well versed in details 
relevant to factory operations, he possessed a winning and convincing 
personality. Arnold hoped to accomplish a great deal with him. After estab- 
lishing that Schiff had missed just two Saturdays at the office since June 1, 
191 2, and that he generally worked alongside his superior, the lawyer 
asked: "Did you ever see Jim Conley on Saturday afternoons?" 

"No." 

"Did you and Frank ever have women up there?" 

"No." 

"Did Mrs. Frank ever come to the factory on Saturday afternoons?" 

"Quite often." 

"Did you know this man Dalton?" 

"Never saw him." 

"Do you know Daisy Hopkins?" 



272 AND THE DEAD SHALL RISE 

"Yes." 

"Did you ever see her come back on Saturday afternoon alone or with 
anybody else?" 

"I did not." 

Nearly a year of Saturdays thus innocently accounted for, Arnold 
directed Schiff s attention to the holiday on which Conley maintained Frank 
had indulged in his most outrageous debauch. After obtaining confirmation 
of E. F. Holloway's assertion that Thanksgiving 191 2 had indeed been "cold 
and snowing," Arnold startled the courtroom by eliciting the fact that Jim 
actually had been in the building that day. "I ordered Conley to come back 
to clean up the box room," Schiff recalled. Far from hurting Frank, however, 
this news ultimately helped him, for as the assistant superintendent added, 
the Negro had finished his labors at 10:30 and left before noon— before, in 
short, the elegant, white-shoed woman purportedly arrived. 

"When did Frank leave?" the lawyer followed up. 

"About twelve. We left together. I saw Frank to his car for home." 

By Schiff s account, then, neither Conley nor Frank was at the plant at 
the time of the alleged frolics. But lest there be suspicion that the superin- 
tendent might have returned later, Arnold inquired: "Do you remember 
anything Frank had to do that day?" 

"Yes," Schiff replied. "He went to a B'Nai Brith affair." 

Coming so quickly on the heels of his refutation of Conley's charges 
regarding Frank's Saturday activities, Schiff s debunking of his account of 
the Thanksgiving romp suggested an inevitable line of inquiry. 

"Do you know Jim Conley's general character for truth and veracity?" 
Arnold demanded. 

"Yes." 

"What is it?" 

"Bad." 

"Would you, knowing his character, believe him on oath?" 

"I would not." 

With that, Arnold was momentarily finished with the subject of Conley 
and pointed Schiff to his other principal area of interest— the amount and 
kind of office work Leo Frank had completed on the Saturday of Mary Pha- 
gan's death. Though the defense had, of course, touched on this topic during 
the trial's opening week, no one save the accused himself could speak more 
authoritatively than Schiff to the computations the factory's weekly finan- 
cial sheet entailed. Which was exactly what the lawyer asked him to do. 
After glancing over the April 26 sheet, Schiff began a painstaking account: 

Under the heading "Material Costs," the first figure 2719 and l A represents 
the number of gross that we manufactured for that week. To get that figure 



DEFENSE 273 

Mr. Frank had to enter all his packing reports for Thursday containing two 
or three pages, each of them containing 12 to 15 or 18 items. He had to cal- 
culate and have a separate report as to each kind of pencil and then add 
them up. We manufacture over a hundred kinds of pencils. That week we 
dealt with about 35 different kinds. To do this you have to add, multiply, 
classify and separate each pencil into a different class. 

And these equations, Schiff added, covered only finished pencils. The dif- 
ferent raw materials— slats, rubber, lead— had to be similarly broken down. 
Same with packing supplies— boxes, wrappers and the like. Initially, the 
assistant superintendent's atomization of all this may have struck the jurors 
as overly detailed, but as he proceeded, speaking of deliveries processed 
and orders fulfilled, a potentially exonerating vision of Frank's activities on 
the day of the crime came to life. In it, the factory boss, far from resembling 
the sexual deviant depicted by the state, emerged as a paragon of modern 
management, a dispassionate, attentive executive busily balancing columns 
of numbers and presiding over engines of production. After carefully citing 
a few last figures, Schiff, confirming an earlier witness, proclaimed: "I think 
it would take about three hours to go through the calculations and com- 
plete the sheet." At which point Arnold produced a bundle of previous 
reports written by Frank. After the assistant superintendent pronounced 
the one compiled the afternoon of little Mary's demise to be identical to the 
others in all relevant aspects, the sheets were placed in evidence: proof, or 
so the defense hoped, that the Saturday of the killing had been no different 
for Frank than scores of Saturdays before. 

Arnold concluded by eliciting several pieces of information that while 
not earthshaking in and of themselves added up to a forceful volley. First, 
Schiff testified that it was he— not Frank— who'd manned the payroll win- 
dow the Friday prior to the murder, which cast terrific doubt on Helen Fer- 
guson's claim that Frank had rebuffed her request for Mary Phagan's pay 
that evening. Schiff also confirmed that just as his superior had told Black 
and Starnes the morning little Mary's body was found, the pencil com- 
pany's insurance agent had ordered that the factory's electrical switch box 
be kept unlocked. Moreover, he suggested yet another way in which the 
girl's remains could have been transported to the basement, telling the 
lawyer that the elevator's metal doors could be pried open by hand, mean- 
ing that someone could be pushed through the opening without activitating 
the motor. Finally, Schiff declared that when he came to work the Monday 
following the crime, the office safe was open, and there was no mesh purse 
inside. On that note, Arnold sat down. 

Hugh Dorsey began his cross-examination not by attacking the sub- 
stance of Schiff s testimony but by trying to paint him as a shameless pro- 



274 AND THE DEAD SHALL RISE 

Frank loyalist. The solicitor sought to convey this impression through a 
series of questions designed to suggest that in the days immediately follow- 
ing Mary Phagan's murder, the assistant superintendent had maligned the 
dead girl's character by telling various officials she was pregnant and about 
to lose her job. Reuben Arnold, however, would not countenance such a 
line of inquiry and neither, it turned out, would Judge Roan, who sustained 
each of the defense's many objections. Dorsey then changed tacks, honing 
in on the amount of time Schiff contended was necessary to complete the 
factory's financial sheet. Here again the solicitor came up short. Yes, he got 
the assistant superintendent to concede that he'd never actually clocked 
Frank doing the job. But that was it. In fact, when Dorsey presented the 
April 26 report to Schiff and asked how he could be certain Frank had not 
prepared it in advance, he was informed that as of quitting time the previ- 
ous evening, work on the sheet had not started. Of course, Dorsey wasn't 
about to let such a rebuff stop him, but with the lunch hour now at hand, he 
did not protest Roan's decision to adjourn for the week. As the newspapers 
agreed, the prosecution was spinning its wheels. Reported the Constitution: 
"Saturday was by far the best day the defense in the Frank trial has had." 
And most observers expected better days ahead. Noted the Georgian in its 
Sunday editions: 

As all interest centered in the dramatic story of Jim Conley while the 
case of the prosecution in the Frank trial was being presented, so the pub- 
lic now is awaiting with the keenest expectancy the tale that W. H. Mincey, 
pedagogue and insurance solicitor, will relate when he is called this week 
by the attorneys for Leo M. Frank. 

Conley swore as glibly as though he were telling of an inconsequential 
incident in one of his crap games that Frank had confessed to him the 
killing of Mary Phagan. 

Mincey will tell a similar story, except that Conley will be named as the 
man confessing the crime. 

The trial's third week started exactly as its second had ended— with 
Hugh Dorsey trying to break down Herbert Schiff. During the course of 
Monday's first two hours, the solicitor thoroughly sifted the assistant super- 
intendent, eventually obtaining several seemingly significant admissions. To 
begin with, Schiff acknowledged that Leo Frank could have finished the fac- 
tory's financial sheet the Saturday morning of the murder. Then, in response 
to a question implying that Jim Conley received special treatment at the 
plant, he conceded that the Negro's untrustworthy reputation notwith- 
standing, his superiors never considered firing him. Finally, he allowed that 
had Mary Phagan's body been dropped into the basement through the 



DEFENSE 275 

Clark Woodenware space's scuttle hole, it would have landed in a location 
where Newt Lee would have spotted it far earlier than he did. 

By the time Reuben Arnold completed his redirect examination, how- 
ever, most of the damage had been repaired. Regarding the financial sheet's 
preparation, Schiff declared that during the five years he'd worked at the 
National Pencil Company, Frank had without exception written up the doc- 
ument on Saturday afternoons. As for not dismissing Conley, Schiff offered 
a rationale that few who heard it would have rejected, asserting that trust- 
worthy Negroes were simply hard to find. Considering that Dorsey had 
made a concerted effort to discredit Schiff, the survival of his testimony's 
main points represented a great triumph for the defense. But it would not 
be without a cost, for from this moment forth, the solicitor would conduct 
himself far more fiercely. 

No sooner had Arnold finished examining his next witness— Dr. George 
Bachman, a French-born physiology professor at the Atlanta College of 
Physicians and Surgeons who continued the assault on Dr. Harris's autopsy 
findings— than Dorsey gave an initial indication of just how rough he now 
intended to play. 

"Are you an expert chemist?" the solicitor began. 

"I am so far as the body is concerned." 

"What is amidulin?" 

"I never heard of the word." 

"Well, if you have never heard of amidulin, did you ever hear of ery- 
throdextrin?" 

"Write it out." 

And on it went, with Dorsey firing fifty other medical tongue twisters at 
Bachman, only a few of which the professor could decipher and several of 
which occasioned outbursts of laughter from a gallery that delighted in 
watching an erudite furriner be made to appear ignorant. Though some of 
the terms had to do with digestion and were therefore relevant to the issue 
at hand, the solicitor's goal was to divert attention from the substance of the 
professor's testimony. 



Whatever pause Hugh Dorsey's treatment of Bachman may have given 
Frank's lawyers, they began Monday's afternoon session by calling yet 
another physician, Dr. Thomas Hancock, chief of medicine for the Georgia 
Railway and Power Company. A graduate of Columbia University who had 
been in practice for 22 years, Hancock projected the sort of certitude that 
made him just the man to speak to an ugly allegation. Hence, Reuben 
Arnold opened his examination by inquiring: "Have you made a physical 
examination of Leo M. Frank?" 



276 AND THE DEAD SHALL RISE 

"Yes." 

"Is he normal?" 

"I have examined the private parts of Leo M. Frank and found nothing 
abnormal. As far as my examination disclosed he is a normal man sexually." 

Having thereby gone a long way toward debunking Conley's claim that 
Frank "was not built like other men," Arnold directed Hancock's attention 
to the substance of Dr. Harris's testimony, swiftly securing one more 
learned dissent before turning the witness over to his counterpart. 

Dorsey's cross of Hancock was even more worrisome than his examina- 
tion of Bachman, for with his very first question, he introduced an issue that 
would not only negate any good the venerable physician had done Frank 
but would further tarnish the accused's character. 

"You don't mean to say," the solicitor commenced, "that homosexuality 
is confined to defected patients?" 

"In my experience, I have not touched on that line," Hancock responded 
in a puzzled tone. 

"Didn't you say that you had examined Frank?" 

"Yes, but I judged merely from his outward appearance." 

"You know but little, then, of homosexuality?" 

To this, Hancock could do no more than shrug. Whereupon Dorsey sat 
down, having brazenly sailed another line of objectionable questioning past 
the defense. 

Realizing, albeit belatedly, that the state's insinuations regarding Leo 
Frank's sexual orientation could not be left unchallenged, Arnold began 
the examination of his next witness, Dr. Willis Westmoreland, a socially 
well-connected Atlanta physician, by demanding: "Did you at our request 
on yesterday examine Leo M. Frank?" 

"I did." 

"Did he appear to be a normal male human being?" 

"From the examination of the private parts of Leo M. Frank he appears 
to be a perfectly normal man." 

Having thus elicited at least a reaffirmation of Hancock's findings on this 
point, Arnold steered Westmoreland to the topic of Dr. Harris's autopsy 
report, securing not only one more denunciation of the health board secre- 
tary's work but getting into the record a vital yet heretofore unpublicized 
fact: Harris had discarded Mary Phagan's stomach following his post- 
mortem, destroying any opportunity for an independent analysis. The usual 
custom, declared Westmoreland, was to save at least a portion of such 
organs. 

Though Westmoreland's testimony seemed irrefutable, Dorsey was not 
deterred. Right out of the chute, the solicitor honed in on the fallacy of 



DEFENSE 277 

judging a book by its cover, inquiring: "Aren't sexual inverts normal so far 
as physical structure is concerned?" 

"Yes." 

Plainly, Dorsey was not going to let the issue of Frank's purported 
deviancy drop. Yet he briefly put it aside, concluding his questioning by 
grilling Westmoreland regarding his relationship with Harris. As it turned 
out, the witness, while serving as president of the Georgia Board of Health, 
had instigated an investigation into Harris's response to a malaria outbreak 
in the central part of the state. When the probe exonerated Harris, West- 
moreland had resigned from the board. The solicitor's point could not have 
been clearer: Westmoreland's criticism of Harris's handling of the Phagan 
autopsy grew out of a professional grudge. 

During his redirect examination of Westmoreland, Arnold did what he 
could to ameliorate the damage, obtaining the physician's assertion that he 
bore Harris no ill will. Their dispute had been purely scientific. That said, 
the lawyer took a shot at discrediting an insinuation rooted in Conley's tes- 
timony, asking whether trauma of the sort evident in Mary Phagan's sexual 
organs could have been inflicted by cunnilingus. Replied Westmoreland: 
"The human tongue could not produce any signs of violence in the vagina." 

As Monday's final witness, Arnold summoned a renowned accountant to 
reiterate the most significant portion of Herbert Schiff s testimony. Joel 
Hunter's Atlanta-based business attracted clients from across the country, 
and by his calculations, Leo Frank could not have completed the 150 
distinct computations involved in the preparation of the pencil factory's 
weekly financial sheet in under 172 minutes. Not surprisingly, Dorsey vigor- 
ously challenged Hunter's assessment, demanding to know whether the 
superintendent's familiarity with plant operations might have enabled him 
to balance the numbers more quickly. But to the solicitor's chagrin, the 
accountant replied that Frank's superior knowledge probably caused him 
to take longer, as at the bottom of every column, he had to stop and con- 
sider what the results meant in terms of the performance of various depart- 
ments and the status of outstanding orders. Hunter's assertions lent further 
legitimacy to Frank's version of his activities on the afternoon of the mur- 
der. Which was why, despite the session's many reversals, the Constitution 
termed it "the best the defense has thus far had." 



Tuesday morning opened with yet another accountant on the stand. Ac- 
cording to C. E. Pollard of the American Audit Company, the pencil fac- 
tory's weekly financial sheet was even more complicated than Joel Hunter 
allowed, involving 209 computations and requiring 191 minutes to prepare. 



278 AND THE DEAD SHALL RISE 

While Pollard did contradict Hunter on one key point, conceding dur- 
ing Frank Hooper's cross that "a man can do his own books more quickly 
than a third party," in the end, his testimony more than confirmed the 
defense's contention regarding the task's time-consuming nature. Now 
Reuben Arnold needed to verify that Leo Frank did not start the job on 
April 26 until after returning to his office from lunch. Which was why he 
called the stenographer for the Montag Brothers Paper Company as the 
day's second witness. 

Unlike most of the women summoned thus far during the trial, Hattie 
Hall was a brisk and efficient professional, and no sooner had she taken her 
seat than she was telling Arnold that Frank had practically begged her 
to come in on April 26, informing her "that he had work that would take 
him until 6 o'clock." Though Hugh Dorsey objected to the stenographer's 
recounting of the superintendent's comment, Judge Roan overruled him, 
enabling Hall to go on at greater length. As she told it, her first conversation 
with Frank that Saturday had occurred early in the morning by phone when 
she'd advised him that her duties at Montag Brothers— her primary respon- 
sibility—were such that she wouldn't be able to get away. Yet by 10 a.m., 
when Frank appeared at the paper factory to pick up the mail and again 
asked for help, she had made enough progress to answer affirmatively, and 
sometime between 10:30 and 11:00, she made the five-minute walk to 
Forsyth Street. Upon reaching Frank's office, Hall said she'd immediately 
pitched in, filling out a number of order acknowledgments and taking dicta- 
tion on several letters, which she then typed and handed to Frank for his 
signature. Altogether, she added, the tasks had required about an hour. 
Having thus traced Hall's activities on the day of the murder until nearly 
noon, Mister Rube handed her the critical document. 

"Was Frank doing any work on this financial sheet when you were there 
that morning?" he inquired. 

"No, sir. Throughout the time I was there, he did no work on the financial 
sheet." 

This was the response Arnold had been seeking, and on its strength he 
sat down. 

During his cross-examination, Dorsey tried to induce Hall to admit that 
she really wasn't sure what Leo Frank had been doing in his office between 
1 1 and noon on April 26, but she held her ground, asserting: "When I was in 
there he was at work on a pile of letters." Similarly, when the solicitor 
attempted to get the stenographer to concede that Frank had spent previ- 
ous Saturday mornings preparing the financial sheet, she again resisted, 
maintaining that on the occasions with which she was familiar, the superin- 
tendent had never done so. Then there was the matter of a $4.50-per-week 
pay hike Hall received on August 1. The obvious implication here was that 



DEFENSE 279 

Sig Montag had given the raise to influence its recipient's testimony. Once 
more, however, Hall demurred, responding that the increase had long been 
scheduled and was, in truth, a condition of her employment. Whereupon 
Dorsey returned to his seat. 

For Arnold, Hall was the perfect witness— competent, steady and 
informed— and during his redirect, he used her to even more telling effect. 
First, in answer to a question regarding whether Frank had telephoned any- 
one while she was in his office on April 26, the stenographer stated that he 
had called a salesman named Harry Gottheimer and suggested that he drop 
by after lunch. Then Rube asked whether the superintendent said anything 
to Hall before she departed for the day. "He asked me," she replied, "to stay 
all afternoon and help him, that he was busy." Neither of these actions was 
consistent with the thinking of a man planning a midday tryst. And that, of 
course, was the point. 

After his success with Hall, Arnold shifted his focus from the Saturday 
of the murder to the Saturdays that preceded it, summoning a series of 
witnesses whose sole function was to discredit the testimony of C. Brutus 
Dalton. Each of these individuals, all of whom were from Dalton's home 
county east of Atlanta, was, in the Constitution's phrase, "a sturdy farmer or 
fairly well-to-do citizen," and none of them had a good thing to say about 
the man the state had put up to substantiate Jim Conley's charges regarding 
Leo Frank's past liaisons. To a one, they said they would not believe Dalton 
on oath. Confronted by such unanimity on the subject, Hugh Dorsey de- 
clined to conduct a single cross-examination. 

Next up for the defense was the National Pencil Company's 14-year- 
old office boy. Arnold's hope was that Alonzo Mann, who though he'd 
worked only half a day on April 26 typically remained on the premises until 
4 p.m., could further undermine Dalton's and Conley's allegations regarding 
Frank's Saturday afternoon assignations. But while the youngster stated that 
he'd never seen Dalton around the place, much less witnessed Frank bring- 
ing women in for drinks, and while Dorsey, during a brief cross-examination, 
failed to shake these assertions, his testimony was marred by the fact that he 
seemed unduly nervous. Noted the Journal: "He was frightened by his expe- 
rience in court, and the stenographer had difficulty in hearing his answers." 

Following on the heels of the halting and shy Alonzo Mann came a confi- 
dent and effusive factory inspection department employee who, as he 
approached the stand, stopped at the defense table and made a sweeping 
bow to a beaming Leo Frank. As it turned out, Wade Campbell's testimony 
would give the accused even more reason to smile. As the brother of Mrs. 
Arthur White, he was in a position to recount his sister's original assertion as 
to what she'd witnessed at the plant during her critical midday visit on April 
26. "She told me," he informed Arnold, "that she had seen a negro sitting at 



280 AND THE DEAD SHALL RISE 

the elevator shaft at 12:00 on Saturday." During the state's presentation of 
its testimony, Mrs. White had, of course, maintained that the hour was 1 p.m. 
For the prosecution, Campbell presented a familiar problem, and 
Dorsey confronted it in a familiar way, emphasizing the witness's sympa- 
thies for Frank. Hence, Campbell was soon revealing that he had formerly 
been roommates with one of Frank's principal partisans, assistant plant 
superintendent N. V. Darley. Yet notwithstanding this admission, Campbell 
did not waver during the solicitor's repeated attempts to get him to say that 
his sister had told him she'd seen a Negro sitting near the factory elevator 
shaft not at 12:00 but at 1:00. Again and again, Campbell repeated that the 
time she'd stated was noon, leaving Dorsey with little choice but to sit 
down, whereupon Judge Roan gaveled the morning session to a close. 



Of all the testimony the prosecution had presented to bolster its allegation 
that Leo Frank had intentionally lured Mary Phagan to his office on April 
26, none had been more persuasive than that of Helen Ferguson, and it was 
in the hope of countering her claim that the defense began Tuesday after- 
noon's session by putting up yet another factory girl: 

Getting right to the point, Reuben Arnold asked Magnolia Kennedy, 
"Were you there when Helen Ferguson drew her pay Friday night?" 

"Yes. I was behind her, and had my hand on her shoulder." 

"Was Mr. Frank there?" 

"No." 

"Who was there?" 

"Mr.Schiff." 

"Did she ask Mr. Schiff for Mary's money?" 

"No." 

"Would she have had any business going to Frank for Mary's money 
when Schiff paid off?" 

"She wouldn't have any." 

Having thus scored what the Journal termed "a direct contradiction of 
Helen Ferguson's testimony," Arnold was done. 

Hugh Dorsey responded to the Kennedy girl's injurious revelations by 
changing the subject, using the witness to introduce a damaging assertion 
that the defense had thus far managed to keep out of the record: 

"Were you at the pencil factory on Monday, April 28?" he inquired. 

"Yes, sir." 

"Did you discover any hair around the metal room anywhere?" 



DEFENSE 28l 

"Mr. Barrett discovered some on the lathe." 
"You identified it, didn't you?" 
"Yes. It looked like Mary's hair." 

With that, the solicitor directed Magnolia's attention to the substance of 
what she'd told Arnold, obtaining not only her admission that she had not 
been with Helen Ferguson every hour of Friday, April 25, but her conces- 
sion that workers who missed their pay sometimes collected it from Frank. 
Considering how the Kennedy girl's testimony started, Dorsey had reason 
to feel pleased that this was how it ended. 

In the wake of Magnolia's appearance, the defense called the pencil fac- 
tory's former office boy. A self-assured 15-year-old, Philip Chambers was 
the antithesis of Alonzo Mann, and after establishing that he had always 
remained in the building on Saturday afternoons until 4:30, Arnold sought 
his point-by-point rebuttal of Dalton and Conley's allegations regarding 
Frank's weekend activities. The boy's responses: 

"Mr. Frank never did have any women in there." 

"I never saw any drinking there." 

"I have never seen Dalton come in there." 

"I have never seen anybody watching the door on any Saturday that I 
was there." 

"I have never seen Mr. Frank familiar with any of the women in the 
factory." 

"I have never seen him talk to Mary Phagan at all." 

For Dorsey, Chambers's myriad refutations constituted a genuine threat, 
yet rather than attack any of the particulars, the solicitor again reversed 
fields, returning to the volatile topic that had obsessed him the previous 
day: 

"You and Mr. Frank were pretty friendly, weren't you?" he began. 

"Just like a boss should be." 

"Did you ever complain to J. M. Gantt that Frank had made improper 
advances to you?" 

"No, sir." 

"You didn't tell Gantt that Frank had threatened to discharge you if 
you did not comply with his wishes?" 

"No." 

As Dorsey started to pose yet another question on the subject, Reuben 
Arnold at last objected, moving to rule out everything that had just been 



282 AND THE DEAD SHALL RISE 

said. Not surprisingly, the solicitor countered, arguing that he had a right to 
show the relationship between the witness and the accused. At this, an 
incensed Arnold rose to his feet and facing the bench declared: 

It's the most unfair thing I've ever heard of in a court proceeding. It's the 
vilest slander that can be cast upon a man. If courts were run this way it 
could be brought against any member of the community— you, me or the 
jury. No man can get a fair showing against such vile insinuations. If this 
comes up again, I will be tempted to move for a new trial. 

Judge Roan's decision to strike the entire exchange from the record 
could not have been more cut-and-dried, but whether in so doing he 
removed it from the jurors' minds was hard to say. Either way, with this 
avenue of inquiry closed, Dorsey returned to his seat, allowing Chambers 
to depart. 

Minola McKnight's repudiation of her infamous affidavit regarding Leo 
Frank's comings and goings on April 26 and the atmosphere in the family's 
household during the succeeding days had, of course, been given the widest 
circulation. Nonetheless, the Negro cook's story focused such a damning 
light on the methods employed in the case by the Atlanta police— not to 
mention undermining the state's time line— that Arnold chose this moment 
midway through the afternoon to put her on the stand. The decision was 
inspired, for within minutes Minola was indignantly describing her mis- 
treatment at the hands of the detectives, recounting how they had thrown 
her in what with inadvertent aptness she called "the control wagon" and 
driven her to headquarters, where they "worried and threatened" her until 
she made a false statement. The truth, she reaffirmed, was that Frank, just as 
he maintained, had returned home for lunch on the day of the crime at 1:20 
p.m., eaten his meal, then left at 2:00. As for her charges of subsequent wor- 
risome activity at 68 Georgia Avenue, she once more disavowed them, too. 

During his cross-examination of Minola, Dorsey— as he'd done when 
news of her renunciation broke— invoked the name of Albert McKnight, 
demanding to know whether this figure had not simply "confronted" her 
with "what you had told him about things you had seen and heard around 
the house." Yet as she'd done before, the woman denounced her husband, 
his coworkers at Beck & Gregg Hardware and the detectives. These men, 
she reasserted, had tried to get her "to tell a lie," keeping her "locked up" 
until she did. So insistent and unwavering was Minola in this contention 
that the solicitor had little choice but to cede the floor. 

No sooner had Dorsey sat down than Arnold summoned a pair of wit- 
nesses whose purpose was to resume the assault on Jim Conley. Corinthia 
Hall and the young woman who followed her, Emma Clark, were the 



DEFENSE 283 

factory foreladies who, according to Conley, had appeared at the plant 
office on the afternoon of April 26 in the immediate aftermath of Mary 
Phagan's murder, necessitating his hasty banishment to a sweaty wardrobe. 
But as they both told it, while they did visit the building that day, they 
arrived at 11:35 A - M - an( 3 left about 11:45, which meant, of course, that 
they'd come and gone well before the crime occurred, well before Leo 
Frank, even if he were the killer, would have needed to hide an accomplice. 
The women's stories were replete with so many convincing specifics (each 
recalled seeing Hattie Hall, who went home at noon, at work at the super- 
intendent's desk) that in the space of just a few minutes they had negated 
one of Conley's most vivid claims, in the process raising doubts as to the 
credibility of his entire account. Which explains why Hugh Dorsey, resort- 
ing to a favorite strategy, let their testimony enter the record essentially 
intact, asking Hall just a couple of unavailing questions, then waiving his 
right to cross-examine Clark. From the solicitor's vantage, the less said 
about any of this, the better. 

Arnold called Lucille's parents as Tuesday's final witnesses, and first 
Emil, then Josephine, Selig testified that Leo Frank had exhibited no anxi- 
ety either at lunch on April 26 or at a poker party later that evening. In fact, 
they maintained, he'd been cheerful and lighthearted; both recalled that 
during the card game, he'd delighted the table by reading aloud a humorous 
item from Metropolitan magazine concerning the misadventures of a base- 
ball umpire. Finally, the Seligs swore that they could not remember the 
telephone— which Arnold took pains to emphasize was downstairs in the 
dining room— ringing early the next morning, contending that once they 
and their daughter and son-in-law were upstairs with bedroom doors shut, 
the device was difficult to hear. 

Lucille's parents hardly seemed targets for a productive cross- 
examination, but Dorsey, perceiving a point of vulnerability, promptly 
elicited damaging admissions from them regarding their understated reac- 
tions to the news of Mary Phagan's death. 

"Do you mean to tell this jury," the solicitor demanded of each, "that a 
girl had been found murdered in the basement of the factory of which your 
son-in-law is the superintendent and yet you paid no attention to anything 
said about it?" 

"Yes," the Seligs in turn replied, conceding that on the Sunday the body 
was discovered, the crime went undiscussed in their house. 

For Dorsey, there could have been no better stopping point, but before 
Mrs. Selig could step down Arnold, realizing that he had to do something, 
leaped to his feet. 

"The facts in this case were harrowing, and you didn't want to know 
about them, and you were ill, besides?" 



284 AND THE DEAD SHALL RISE 

"Yes." 

"You had an operation the next day, did you not?" 

"Yes, I was ill." 

In the end, however, what had been said had been said, and the day con- 
cluded with the impression having registered that Leo Frank's well-known 
Atlanta family had responded callously to an unknown child laborer's 
death. 



Though Wednesday began with Reuben Arnold summoning still another 
respected physician to take issue with Dr. Harris's findings, then putting up 
one more batch of small-town elders to cast aspersions on C. Brutus Dal- 
ton's veracity, by midmorning the proceedings had reached a critical turn- 
ing point, for it was at this juncture that the defense called its first character 
witness. 

A 15-year acquaintance and Pratt Institute classmate of Leo Frank, 
Alfred J. Lane, had journeyed to Atlanta from New York, where he worked 
as a merchant, to deliver but one piece of testimony, and he did it, noted 
the Journal, "with emphasis," proclaiming the defendant's character to be 
excellent. 

Immediately following Lane to the stand came several other equally 
enthusiastic New Yorkers, among them another of Frank's classmates from 
Pratt and one from Cornell. Like their predecessor, these old friends all 
spoke highly of the accused factory superintendent, but ultimately, the con- 
tent of their testimony was of less import than the fact of their appearance, 
which signaled that the long-anticipated battle over that most subjective 
determination, a man's good name, had begun. 

Not that there weren't several remaining rounds that the defense in- 
tended to fire at the substance of the state's case. Once the last of this initial 
group of character witnesses stepped down, Arnold briefly resumed his 
attack by calling a time and motion expert to discredit Jim Conley's claim 
that he and Frank had dragged Mary Phagan's body from the factory metal 
room to the elevator, transported it to the basement, then concocted the 
murder notes in under half an hour. As Dr. William Owens told it, studies 
he'd conducted at the plant using stand-ins for the alleged participants and 
a 107-pound bag of sand for the victim proved that the task would have 
required at least 36 minutes. Which meant that had the two begun, as Con- 
ley maintained, at 12:56 p.m., it would have taken them until at least 1:32— 
nearly a quarter of an hour after the superintendent arrived home for 
lunch. Though Frank Hooper, in his cross-examination, succeeded in get- 
ting Owens to concede that because he'd been fiddling with a stopwatch 



DEFENSE 285 

during his experiment, the actual events could have unfolded more rapidly, 
the main point remained intact— time wise, the Negro's account did not 
add up. 

Hard upon Owens's appearance, Arnold summoned yet another former 
factory office boy. Sixteen-year-old Frank Payne's task was to complete the 
demolition of one of Conley's most colorful allegations, and he promptly 
obliged, informing Mister Rube that on Thanksgiving 1912, he'd worked 
alongside Jim at the plant and that the two had finished their tasks and 
departed by 10:30 a.m. In short, the Negro was simply not on the premises 
during the hours he claimed Frank was alone in the office with the white- 
shoed woman. True, in his cross-examination, Dorsey forced Payne to admit 
that he had not actually seen Conley leave the building that holiday morn- 
ing, but in the end, this concession was of minor note. The boy's testimony 
had achieved its purpose. 

Then came Lemmie Quinn, who was on the stand when court adjourned 
for lunch Wednesday and back when it reconvened, rehashing the story of 
his surprise appearance at the factory on the afternoon of April 26. After 
eliciting Quinn 's account of finding Frank working at his desk around 12:20, 
thereby casting more doubt on the state's murder-day chronology, Arnold 
turned his attention to the motivation of one of the case's most debated fig- 
ures, inquiring: "Did Mr. Barrett ever make any statement to you as to the 
reward if Mr. Frank should be arrested?" 

"Yes, he mentioned it several times." 

"What sums, if any, did he mention to you?" 

"He mentioned $2,700 and $4,500." 

"How many times did he mention the reward to you?" 

"I don't remember. It was so numerous that I can't recall them." 

Dorsey went after Quinn with a vengeance, but while he managed to get 
him to repeat the well-known yet still vexing fact that Frank had initially 
not remembered his April 26 visit, and though he secured the further 
admission that Quinn had not mentioned the visit to the police until a week 
after the slaying, he could not shake him regarding the essential point. He 
steadfastly maintained that he'd dropped by the factory and found the 
superintendent immersed in work near the hour the prosecution contended 
little Mary met her death. 

This renewal of the defense's onslaught on the state's case notwithstand- 
ing, one needed to look no further than the afternoon's principal witness to 
realize how utterly the focus had shifted— and how perilous the new course 
would be. John Ashley Jones was an Atlanta representative of the New 
York Life Insurance Company. Eighteen months before Mary Phagan's 
murder, he had ordered a report on Frank preparatory to writing a policy. 



286 AND THE DEAD SHALL RISE 

The results, he told Arnold, had proven the factory superintendent to be 
"first class physically as well as morally." Responding to the lawyer's final 
question, the agent swore that Frank's character was good. 

If there were any doubts as to how Hugh Dorsey planned to combat such 
testimony, his cross-examination of Jones laid them to rest. "Mr. Jones," the 
solicitor began, "don't you know of Frank's relations with the girls down 
there at the factory?" 

"I have never heard any talk of Mr. Frank's practices with the girls 
there," replied the insurance agent. 

"Then you didn't hear that he took girls in his lap down there at the fac- 
tory?" 

Before Jones could answer, Arnold was on his feet. "That is outrageous," 
he shouted. "I shall move for a mistrial if such a question is asked again. It is 
unjust and prejudicial that the gossip of crack-brained extremists should be 
allowed to come before this jury." 

Countered Dorsey: "I'm not four-flushing. I'll bring witnesses here to 
prove all I have charged." 

Following a moment's consideration, Judge Roan— bound by the fact 
that the defense had introduced the issue of character— rejected Arnold's 
objection. Whereupon the solicitor resumed his questioning of Jones, 
demanding: "You never heard that Frank went to Druid Hills with a little 
girl, did you?" 

"No." 

"Didn't you hear about twelve months ago of Frank kissing girls and 
playing with the nipples of their breasts?" 

At this, Rae Frank rose from her seat at the defense table and shaking a 
trembling finger at Dorsey shrieked: "No, nor you either." The suddenness 
and intensity of the outburst brought the trial to a halt as spectators, oblivi- 
ous to the judge's rapping, rushed to the rail. Meanwhile, the elder Mrs. 
Frank, defying the family members attempting to restrain her, kept up her 
tirade. Later, it would be widely reported that she cast aspersions on the 
solicitor's faith, dismissing him as either a "Gentile dog" or a "Christian 
dog." But the confusion was such that her exact words were lost. All that 
can be said for certain is that once order was restored and the woman was 
led from the courtroom, she could be heard to sob, "My God, my God." 

Rae Frank's indignant eruption served merely to goad Dorsey on. In 
fact, no sooner had she been packed into a taxi and sent to her in-laws' 
Georgia Avenue home than the solicitor picked up where he'd left off, ask- 
ing Jones: "Did you ever hear L.T. Coursey or Miss Myrtice Cato say Frank 
would walk into the dressing room without offering any explanation for his 
intrusion?" 

"No," came the reply. 



DEFENSE 287 

"You didn't hear how he stood and looked at poor little Gordie Jack- 
son?" 

"No." 

"You didn't hear what he tried to do to Lula McDonald and Rachel 
Prater?" 

"No." 

"You didn't hear what he said to Mrs. Pearl Darlson when he stood talk- 
ing to her and her daughter with money in his hand, and you didn't hear 
how she hit him with a monkey wrench?" 

"No." 

Following several similarly insinuating queries, Dorsey sat down, and 
shortly thereafter, court adjourned for the day. Subsequently, Arnold 
termed the solicitor's behavior vile and slanderous. Dorsey, on the other 
hand, viewed himself as the aggrieved party, telling reporters: "They have 
abused me." Either way, something poisonous had entered the air. Boomed 
the banner atop the next morning's Constitution: 

MOTHER OF FRANK DENOUNCES SOLICITOR IN COURT 

The first hour of Thursday's session found each side seeking relief from 
Judge Roan for what both perceived as the excesses of the previous after- 
noon. Before the jury was seated, Hugh Dorsey requested that Rae and 
Lucille Frank be excluded from the proceedings for the duration, while 
Reuben Arnold asked that the testimony of John Ashley Jones be stricken 
from the record. "I appreciate the feelings of the wife and mother of the 
defendant," stated the solicitor, "but there is going to be much more testi- 
mony that will be very objectionable to them. I must ask your honor's pro- 
tection." Responded Frank's counsel: "The solicitor's examination of Mr. 
Jones yesterday was wholly unwarranted and much more reprehensible 
than the act of this man's mother. He tried to get before the jury in an ille- 
gal way acts he could not get before it in a legal way. The jury system is very 
lame if this sort of evidence is admitted." As it turned out, however, Roan 
disappointed all comers, ruling that the two Mrs. Franks could remain while 
overruling the objection to Jones's testimony. At which point the twelve 
men who would determine the defendant's fate filed in, and the examina- 
tion of witnesses resumed. 

With a cooling-off period in order before the topic of Leo Frank's char- 
acter was reintroduced, the defense chose this moment to buttress the 
superintendent's account of his activities during the early afternoon of 
April 26. Attesting to the fact that Frank left the factory by 1:10— which 
contradicted Conley's allegations— was a stenographer for an Atlanta med- 
ical supplies firm. As young Helen Kerns told it, she was shopping at Kress's 



288 AND THE DEAD SHALL RISE 

that Saturday and had just looked at a clock in front of a nearby jewelry 
store when she noticed the superintendent, with whom she'd once inter- 
viewed for a job, standing at the corner of Alabama and Whitehall awaiting 
a trolley. Lending credence to this testimony was that of the Franks' across- 
the-street neighbor. According to Mrs. Albert Levy, she was sitting on her 
porch at 1:20 when she saw Leo get off the car and walk into his home. The 
state did its best to discredit these witnesses, but to no avail. 

Frank's version of his preprandial peregrinations on April 26 thus 
corroborated, the defense sought to better establish his movements a bit 
later on. From Lucille's Athens kin, Jerome and Mrs. M. G. Michael, and 
from Hennie Wolf sheimer— all of whom were standing outside Mrs. Wolf- 
sheimer's house a few doors from the Franks' that Saturday afternoon— 
Arnold confirmed that following lunch Leo boarded a 2:00 trolley back 
to town, a fact that gave the lie to Albert McKnight's claim of an earlier 
departure. Reinforcing this point, Rebecca Carson, forelady of the pen- 
cil company's sorting department, swore that she saw Frank near Rich's 
Department Store around 2:25 and then at Jacob's Pharamacy ten minutes 
later. Here again, the state failed to shake any of these witnesses. Moreover, 
Carson provided the defense with an ancillary victory by relating a story 
about some suspicious behavior on Jim Conley's part the Monday after 
Mary Phagan's murder. As she told it, several factory employees were dis- 
cussing the crime and their whereabouts at the time it occurred. When Con- 
ley's turn to speak came, she said he announced: "I was so drunk I don't 
know where I was or what I did." Later in the same conversation, she 
added, Conley quit the room when someone offered that the killer was 
most likely the Negro whom Mrs. Arthur White had spotted at the bottom 
of the plant stairwell on the day of the tragedy. 

Momentum having shifted back to the defense, Arnold secured tributes 
to Frank's good character from a Brooklyn lawyer who'd known him since 
boyhood and from his Cornell roommate. Though Frank Hooper mocked 
the Cornell alum's assertion that his old school chum "associated with the 
finest class of students," he failed to damage his or his predecessor's positive 
assessments. 

Pleased as Frank's lawyers were to have successfully revived their risky 
new strategy, there were still a few more pieces of direct evidence they 
wanted to get before the jury. Which was why Mister Rube chose to con- 
clude the morning's session by summoning the man to whom Frank re- 
ported at work. 

As principal stockholder in the National Pencil Company and president 
of a thriving paper manufacturer, Sigmund Montag was the imperious 
embodiment of Atlanta's Jewish elite. The story Arnold elicited from him 



DEFENSE 289 

initially seemed to cast many of Frank's actions in the immediate aftermath 
of the murder in a more sympathetic light. Montag testified that on the 
morning Mary Phagan's body was discovered, he was at least as nervous as 
Frank. "I was very much agitated and trembled," he allowed. Next, he 
addressed the circumstances surrounding how the factory superintendent 
acquired legal representation before being charged. As Montag told it, he 
was solely responsible. When he heard on the Monday following the crime 
that Frank— whom he characterized as being of "very limited acquain- 
tance"— had been taken to headquarters, he called Herbert Haas. "Mr. 
Haas answered that he didn't like to leave home that morning, that his 
wife was expecting a new arrival, so I sent my automobile after him. He 
then telephoned for Mr. Rosser." Finally, Montag took on the issue of the 
Pinkerton Detective Agency's role in the probe, insisting that in hiring the 
firm, the pencil company was only trying to solve the crime. 

From the instant Hugh Dorsey began his cross-examination of Montag, 
it was plain that he meant to hang him with his own words. 

"You say that Frank had a limited acquaintance here?" the solicitor 
started off. 

"Yes." 

"Isn't he president of the B'nai Brith?" 

"I think so." 

"How many members has that organization?" 

"Between 400 and 500, 1 should say." 

Montag's rationale for engaging Frank's legal counsel made to appear 
implausible, Dorsey turned to the subject of the Pinkerton Agency. 

"You were so much interested in this case that you hired the Pinkertons. 
And yet you didn't tell the police about their discoveries?" 

At this, Luther Rosser broke the silence he'd maintained during the past 
few days. But Judge Roan overruled his objection, and Dorsey pressed 
ahead, soon enough eliciting the answer that the defense's lead counsel had 
seen coming. 

"You got the report on the finding of that stick, didn't you?" 

"I did." 

"And of the finding of that envelope?" 

"I did." 

"What did you do with these findings?" 

"I gave the reports to Mr. Rosser." 

With that, Dorsey started in on the matter of Frank's anxiety the morn- 
ing the body was found. But before the solicitor could finish propounding 
his first question, Montag cut him off. "Mr. Dorsey, don't twist anything I 
say." 



290 AND THE DEAD SHALL RISE 

"He will anyhow," cracked Reuben Arnold in an aside audible through- 
out the courtroom. 

At which point Dorsey and Arnold charged each other like ballplayers at 
the start of a brawl. "For a minute or two," reported the Journal, "a physical 
encounter seemed imminent." Eventually, though, the men were separated. 

Rosser conducted the defense's redirect examination of Montag, but 
aside from securing the fact that there would have been no reason for 
him to forward the Pinkerton reports to headquarters, the police having 
received their own copies, he could do little to make things better. After he 
returned to his seat, court recessed for lunch. 



Save for factory worker Harry Denham, who affirmed the defense's con- 
tention that the plant elevator had not been run on April 26, the witnesses 
who trooped to the stand Thursday afternoon did so for only one reason— 
to attest to Frank's good character. The procession began with another con- 
tingent of Cornell men. First came John Todd, a classmate who was now a 
purchasing agent at the Crucible Steel Company in Pittsburgh. Then C. D. 
Albert, a professor of machine design. Then C. E. Vanderhoef, foreman of 
the university's foundry. "The loyalty with which Frank's instructors flocked 
to his aid" was moving, noted the Constitution, adding, "The sordid sur- 
roundings lost some of their grimness as witness and prisoner gripped 
hands silently or spoke the few simple words of greeting." 

Following these proponents, none of whom Dorsey seriously challenged, 
came a second, much larger group comprised almost entirely of Atlanta 
Jews. Leading off was Rabbi David Marx, followed by the new Chamber of 
Commerce president, Victor Hugo Kriegshaber. Thereafter came lawyer 
Max Goldstein, Hebrew Orphans Home superintendent R. E. Sonn, Termi- 
nal Station employee Albert Levy and Federation of Jewish Charities sec- 
retary Alex Dittler. Here again, most of the testimonials went into the 
record uncontested. But in a couple of instances, they did not. 

With Arthur Heyman, Hugh Dorsey found himself in the unusual posi- 
tion of being given a chance to cross-examine the senior partner in his own 
law firm, and he did so with surprising relish, forcing Heyman to concede 
that his glowing assertions regarding Frank's character were based on 
fewer than seven or eight meetings. 

Dorsey saved his toughest cross-examination, however, for Thursday's 
final witness. Milton Klein was one of Frank's closest friends, and after 
establishing that he'd seen the superintendent at the Tower nearly every 
evening since his arrest, the solicitor inquired: "Were you there when Con- 
ley sought to confront Frank?" 



DEFENSE 291 

After Judge Roan sustained Luther Rosser's objection, Dorsey re- 
phrased the question: "Tell us, Mr. Klein, did Conley come down there?" 

"Yes," replied the witness, and with that, the devastating story that the 
defense had until now managed to keep out of the record was suddenly fair 
game. 

"Did Frank see Conley?" Dorsey began. 

"No." 

"Did the detectives bring Conley to the front of Frank's cell?" 

"Yes. I went to the front and acted as his spokesman." 

"Then Frank didn't come out at all? He stayed in the back end of his cell 
all the time." 

"I said he did not come out." 

During Rosser's redirect exam, he elicited the key fact that he had been 
out of town at the time in question and had instructed his client to speak to 
no one until his return. Nonetheless, Dorsey 's point remained intact— given 
the chance, Frank had refused to face his Negro accuser. 



On Friday morning, Hugh Dorsey made headlines by announcing that a 16- 
year-old Georgia girl named Dewey Hewell had been returned to the city 
from the Home of the Good Shepherd (an institution for unwed mothers) 
in Cincinnati, Ohio, and was being held at headquarters. Though neither the 
solicitor nor Chief James Beavers would reveal the girl's connection to the 
proceedings, the meaning of her appearance was unmistakable. As the Con- 
stitution reported: "Dewey Hewell has been brought back to give testimony 
against Frank." 

The morning's other news-generating revelation was that W. H. Mincey, 
the insurance salesman who claimed that Jim Conley had confessed Mary 
Phagan's murder to him, would not testify. Exactly why Frank's lawyers 
decided not to call the much anticipated figure was never sufficiently 
explained. Later, Luther Rosser claimed: "The only use we would have had 
for Mincey was to contradict Conley, and as Conley got on the stand [and] 
contradicted himself enough [we did not need] other witnesses to do it." Yet 
considering the buildup, such a rationale was unbelievable. More likely, 
Rosser and Arnold had arrived at the conclusion Dorsey had reached early 
on— neither Mincey nor his story could withstand scrutiny. 

Against this deeply disheartening backdrop, the defense pressed ahead, 
opening the day's session by summoning another group of Atlanta Jews to 
attest to Frank's good character. By the lunch recess, the jury had heard 
platitudes from 40 of the factory superintendent's coreligionists, only two of 
whom Dorsey cross-examined. 



292 AND THE DEAD SHALL RISE 



In a move plainly intended to enliven a day in danger of degenerating into 
a monotonous cataloging of Leo Frank's virtues, Friday afternoon saw the 
defense briefly resume its attack on Jim Conley.The initial shots were fired 
by the pencil factory's Negro drayman. As peg-legged Truman McCrary, to 
whom Conley had referred during his turn on the stand, told Reuben 
Arnold, he'd worked at the plant every Saturday during the past three years 
and had "never found the front door locked on a Saturday afternoon, never 
seen Jim Conley there watching, never seen him guarding the door." 

Following McCrary to the stand was another factory Negro. Arthur 
Pride was a handyman, and like his predecessor, he said he rarely missed a 
Saturday and had never seen "Jim Conley sitting and watching the door." 
Moreover, he had some generally disparaging words for the state's star wit- 
ness, asserting: "Jim Conley's character for truth and veracity is bad. I 
would not believe him on oath." 

The state aggressively questioned McCrary and Pride, yet both men held 
firm. Indeed, in his examination of the latter, Frank Hooper inadvertently 
bolstered the defense's position when, after eliciting Pride's contention that 
he did not associate with Conley, he asked: "Jim's not a high-class negro like 
you, is he?" 

To which Pride convincingly replied: "I ain't a high-class nigger, but I am 
a different grade from him." 

With that, the defense called another batch of character witnesses— all 
of them factory girls. No group of women was in a better position to help 
Leo Frank, and Reuben Arnold went enthusiastically to work, securing 
from the first to take the stand— polishing department forelady Mary 
Pirk— not only an endorsement of the plant superintendent's moral fiber 
but a denunciation of Jim Conley's. In fact, Pirk harbored such negative 
feelings toward Conley that on the Monday after Mary Phagan's murder, 
she told Arnold, she'd accused him of the crime. "He took his broom and 
walked right out of the office and I have never seen him since," she recalled. 

The moment Hugh Dorsey opened his cross-examination, any thought 
that he would show Pirk the deference he'd shown the Cornell grads and 
Temple members vanished: 

"You say you never heard Frank talked about generally?" the solicitor 
started off. 

"He was a perfect gentleman to me," the witness replied. 
"Well, what did the other girls say about him?" 
"I don't remember anything." 



DEFENSE 293 

"You mean you never heard him accused of any act of immorality?" 

"No." 

"You mean you've never heard of him watching the girls in the dressing 
room?" 

"No." 

"Did you know Mary Phagan?" 

"Yes." 

"Did you ever see Frank talking to her?" 

"No." 

"You never heard of the time, two weeks before her death, that he had 
her in a corner and she was begging him and trying to get away from him?" 

"No." 

Before Dorsey could again open his mouth, an exasperated Luther 
Rosser began to object, but Judge Roan silenced him. "There is no use 
repeating objections that have already been ruled on." 

Up next for the defense was a young female factory machine operator. 
Like her coworker, Iora Small vouched for Frank's character. She also den- 
igrated Conley, telling Arnold that in the murder's aftermath the Negro not 
only read all the extras but carried himself suspiciously. "He had on an old 
Norfolk coat with a belt around it and it buttoned just as tight around his 
neck as it could be," she said. "Before that he had gone around there all 
open and loose." 

On cue, Dorsey went after Small, yet instead of trying to use her to insin- 
uate untoward behavior on Frank's part, he took a different tack, inquiring 
into her attitude toward Negroes. Her response: "I don't know of any nigger 
on earth I'd believe." 

"Then you wouldn't believe Newt Lee or Pride or anybody else whose 
skin is black? They're all on the same plane?" 

"Yes." 

Small's point of view was inherently racist, and as he'd done before, 
Dorsey took advantage of the opportunity to use this fact against the 
defense. 

Still, Arnold stuck with the plan, calling one more factory machine oper- 
ator to utter one more tribute to Leo Frank and strike one more blow at 
Jim Conley. As 17-year-old Julia Fuss told it, not only was the superinten- 
dent an exemplary human being but on the Wednesday of his arrest, none 
other than Conley had conceded as much. "I talked with Jim," she testified, 
"and he told me he believed Mr. Frank was just as innocent as the angels 
from heaven." 

Here again, to no one's surprise, Dorsey fired right back. 



294 AND THE DEAD SHALL RISE 

"You never heard of any familiarity of Frank's with any of the girls ... or 
boys?" 

"No." 

The specter of Frank's purported homosexuality once more raised, 
Dorsey honed in on Conley's alleged postmurder remark exonerating the 
superintendent, implying that the comment was inspired by the Negro's 
desire to protect his accomplice. Soon thereafter, the solicitor returned to 
his seat, but despite having done some damage, he'd failed to diminish the 
defense's accomplishment— three of Mary Phagan's female coworkers had 
testified on Frank's behalf. 

With late afternoon shadows beginning to fall, Luther Rosser, who since 
Arnold's clash with Dorsey had been increasingly handling examinations, 
called as the session's last witness the woman whose outburst just 48 hours 
before had brought the trial to a halt. Now, however, Rae Frank was, in the 
Constitution's words, "perfectly composed," which was no wonder, for her 
task was to introduce a piece of evidence that seemed destined to help her 
son. The item was a letter Leo had written to his uncle Moses on the after- 
noon of April 26, but no sooner had Mrs. Frank started to read it aloud than 
Frank Hooper cut her off, terming the document immaterial and inadmissi- 
ble. The defense countered by declaring that since Frank had composed the 
letter during the period in which the state charged he was committing or 
covering up the crime, it could not be more relevant, and Judge Roan con- 
curred. Thus court concluded with the defendant's mother, after identifying 
the missive as one she had first read in Moses Frank's New York hotel room 
on April 28, intoning: 

Dear Uncle, 

I trust that this finds you and dear Tante well after arriving safely in 
New York. I hope that you found all the dear ones well in Brooklyn . . . 
Lucille and I are well. 

It is too short a time since you left for anything startling to have devel- 
oped down here. The opera has Atlanta in its grip, but that ends today . . . 

Today was "Yondef ' here, and the thin gray line of veterans, smaller 
each year, braved the rather chilly weather to do honor to their fallen com- 
rades. 

Enclosed you will find last week's report. The shipments still keep up 
well . . . 

The next letter from me, you should get on board ship. After that I will 
write to the address you gave me in Frankfurt . . . 

Your affectionate nephew, 

Leo M. Frank. 



DEFENSE 295 

Saturday began with Hugh Dorsey's cross-examination of Rae Frank, 
and from the start, it was clear that he meant to make the defendant's 
mother regret having dressed him down on Wednesday. 

"Do you have any rich relatives in Brooklyn?" the solicitor began. 

"No." 

"What is the value of your estate?" 

"I have no estate." 

"What do you live on?" 

"We have a little money out at interest." 

"How much is that?" 

"About $20,000," the increasingly beleaguered-looking woman replied. 
Though such a sum did not make Rudolph and Rae Frank wealthy, it was, as 
Dorsey knew, more than anyone on the jury had invested. Which was why 
he pushed ahead in the same vein, elicting another fact that indicated afflu- 
ence: The family owned a house in Brooklyn valued at $10,000. A sense of 
the Franks' assets implied, the solicitor inquired into the source of those 
assets. 

"In what business is your husband?" he asked. 

"He is not in business at present." 

"Ah, he's a capitalist, is he?" Dorsey pointedly rejoined. 

To which Rae Frank sadly shook her head. Whereupon the solicitor took 
up the subject of Moses Frank's fortune, eventually forcing the witness to 
admit: "He is supposed to be very wealthy." 

Though Luther Rosser, in his redirect, did his best to put all of this infor- 
mation in a different light, allowing Mrs. Frank to explain that her 67-year- 
old husband had earned every penny through hard work and was now so 
"broken down" that he'd been unable to come south for his son's trial, the 
damage was done. As the Georgian's Old Police Reporter put it: "The 
examination of Rae Frank as to the extent of her wealth injected some 
vague suspicion into the minds of the jury," echoing Jim Conley's claim that 
in the wake of the crime, Leo Frank had said, "Why should I hang, I have 
wealthy people in Brooklyn?" 

The remainder of the day's abbreviated session saw another procession 
of factory girls— all of them in summer dresses and wide-brimmed straw 
hats— take the stand to attest to Leo Frank's good character. For the most 
part, these young things limited their remarks to a few words, but Sarah 
Barnes could not contain herself. "I know Mr. Frank and I don't know any- 
thing in the world against him," she cried. "I love my superintendent. I'd be 
willing to die for him." 

Once again, Hugh Dorsey refused to let such encomiums enter the 
record uncontested. During some of his cross-examinations, he posed the 
now expected query as to "acts of immorality" on Frank's part. During oth- 



296 AND THE DEAD SHALL RISE 

ers, he raised the possibility that various girls had been coached. Yet all 
came to naught for the solictor until the very end, which was when it most 
mattered. 

Eighteen-year-old Irene Jackson, the daughter of an Atlanta police- 
man, was Saturday's final character witness, and like her predecessors, she'd 
been called to praise Frank, but even during Arnold's questioning, she'd 
responded ambivalently, managing merely an "I suppose" when asked if the 
superintendent's behavior at work was good. Once Dorsey got hold of her, 
she related a series of incidents that, if true, went a long way toward con- 
firming the state's thesis. 

As the Jackson girl told it, she and a coworker named Emily Mayfield 
had been sitting in the factory's second-floor women's dressing room one 
day when Frank pushed open the door: 

"Were you dressed?" the solicitor asked. 

"Yes." 

"And Miss Mayfield?" 

"She was undressing." 

"Miss Mayfield was partly undressed?" 

"Yes, she had off her top." 

"What did Frank do?" 

"He smiled or made some kind of face." 

"Did he ever go there any but the one time when you were in there?" 

"Yes. He opened the door and looked in one day when my sister was 
lying down in there." 

"When your sister was lying down?" 

"Yes. She had her feet resting on a stool. I was there." 

"What did Frank do?" 

"He just walked in and walked out." 

"Did you ever hear that he often went and looked in at the girls dress- 
ing?" 

"Yes," the witness replied, detailing a third occurrence— this one involv- 
ing yet another worker with her top off —to which she'd been privy. 

During his redirect examination of the Jackson girl, a scrambling Arnold 
established that the dressing room in question had long been a place where 
workers gathered to gossip and flirt through open windows with passing 
boys and was subject to spot checks by both foreladies and Frank. Still, such 
a reality could not explain away what sounded like unwarranted intrusions 
on the superintendent's part. Noted the Constitution: "Miss Jackson['s] tes- 
timony that on three separate occasions Leo Frank had opened the door to 



DEFENSE 297 

the women's dressing room and gazed upon her and others in various 
stages of dishabille fell like a thunderbolt in the camp of the defense." 



And so the third week of what was now the longest and by general consen- 
sus most bitterly fought trial in Georgia's history came to a close. Thus far, 
203 witnesses (34 for the state, 169 for the defense) had testified, and the 
transcript— which ran to 3,000 legal-sheet pages— exceeded 875,000 words. 
Exactly where, after all of this, the case stood was hard to say. In the best 
of the weekend's many assessments, the Georgian's Old Police Reporter 
asserted that "the defense unquestionably has given the state serious con- 
cern in the way it has brought forward the time element and that in sepa- 
rate and distinct directions." The Hearst paper's pseudonymous scribe also 
believed that Frank's character witnesses, particularly the factory girls, had 
achieved their purpose. But even granting that Rosser and Arnold had 
established in the jurors' minds that Mary Phagan reached the pencil plant 
on April 26 ten minutes later and Frank departed half an hour earlier than 
the state maintained and that they had likewise shored up their client's rep- 
utation, the Old Police Reporter believed that the defense faced an uphill 
climb. First, he noted, "It is unique in the annals of judicial procedure in 
Georgia, as it is contrary to the entire theory of the law, that Leo Frank 
should be combatting at one and the same time" both the charge of murder 
and the allegation of perversion. The combination, the writer feared, could 
prove fatal, and, sounding a theme others would echo, he felt the dilemma 
was "the fault" of Frank's own counsel. Then there was the undeniable 
power of Conley's testimony as a whole. Declared Hearst's man: 

Many people are arguing to themselves that the negro, no matter how 
hard he tried or how generously he was coached, still never could have 
framed up a story like the one he told unless there was some foundation 
in fact. 

And if there remains the impression of even a little foundation in fact 
the defense is damaged beyond repair. 

It gets back to where it started and where it will end— it is Conley pitted 
against Frank. 

Which was why it was small surprise that over the weekend, Rosser and 
Arnold announced that they would put Leo Frank himself on the stand. 
Under Georgia law, the defendant in a capital case was permitted to make 
an unsworn statement free from cross-examination. Though such a state- 
ment consequently lacked the weight of testimony under oath, the jury 
could choose to accept it in whole or in part. For Frank, the risk, of course, 



298 AND THE DEAD SHALL RISE 

was that the jury could also choose to reject such a statement— or, worse, 
hold it against him. 



By 7 a.m. Monday, hundreds of Atlantans were lined up outside the old city 
hall in hopes of obtaining one of the seats within. Those lucky enough to 
gain admission would, however, have to wait for Frank's appearance on the 
stand, as the defense devoted the morning to putting a few more pieces of 
testimony before the jury. In an effort to reinforce the view that no sexual 
activity had been occurring at the factory, Reuben Arnold called Godfrey 
Weinkauf, manager of the concern's lead mill, who stated that during the 
year prior to Mary Phagan's murder, he'd visited Frank in his office every 
other Saturday afternoon and had never seen any women there. Of more 
urgent import, Emily Mayfield, one of the workers the superintendent pur- 
portedly ogled in the plant dressing room, took the stand to assert that the 
incident never happened and to denounce the story's source, Irene Jackson, 
as a liar. Finally, though, the session was given over to a valedictory covey of 
character witnesses, the majority of them again female employees. For the 
most part, Hugh Dorsey refused to challenge these girls. Thus the endorse- 
ments of Lillie Mae Goodman, Lizzie Barnes, Grace Atherton, Ida Holmes, 
Zellie Spivey and Minnie Smith entered the record intact. Yet as the solici- 
tor's cross-examination of one of the last of them demonstrated, he had 
merely been biding his time. 

"You say you have never heard anything bad about Frank?" Dorsey 
asked Lula Wardlaw. 

"No." 

"You're sure you never heard from Hermes Stanton and H. M. Baker, in 
charge of the Hapeville trolley, that Frank had a little girl on the car the Sat- 
urday before the murder?" 

"No." 

"You never heard that Frank had his arm around the girl and tried to get 
her off the car and into the woods?" 

"No." 

With that, Dorsey, having ruined what the defense had hoped would be 
a seamless prelude to Frank's big moment, was done. Shortly thereafter, 
court adjourned for lunch. 



Aside from appearing somewhat pale, Leo Frank exhibited no signs of anx- 
iety upon taking the stand at 2:15 Monday afternoon. During the recess, 
he'd read over his statement— the bulk of which he'd dictated to Lucille 
weeks earlier— while having his throat sprayed by a physician who'd been 



DEFENSE 299 

treating him for a mild cold. Thus sure of what he intended to say and in 
good voice, the superintendent simply started in. 

To begin, Frank, who sat with his hands clasped before him and a folder 
of notes on his lap, provided a summary of his personal and professional 
background: his birth in Texas and his Brooklyn boyhood, his education and 
his apprenticeships, his "sojourn abroad" learning the pencil business and 
his move to Georgia. Only when discussing his wife did he even obliquely 
address the state's charges. "I married in Atlanta, an Atlanta girl," he said. 
"My married life has been exceptionally happy— indeed, it has been the 
happiest days of my life." Here, Lucille smiled up at her husband from her 
seat directly behind the defense table. Yet he did not continue in this rele- 
vant and intimate vein, giving instead a description of his responsibilities at 
work. "My duties," Frank asserted, "were as follows: I had charge of the 
technical and mechanical end of the factory, looking after the operations 
and seeing that our product was turned out in quality equal to the standard 
set by our competitors. I looked after the installation of new machinery and 
the purchase of new machinery. I looked after the purchase of the raw 
materials which are used in the manufacture of pencils, kept up with the 
market of those materials, where the prices fluctuated, so that purchases 
could be made to the best possible advantage." 

Rational and authoritative, Frank's intention, according to the Georgian, 
was to convince the jury of his high position, then "picture his every move- 
ment" during the weekend of the murder, thereby demonstrating "the 
physical impossibility of his having committed the crime and disposed of 
the body as Conley describes." This demonstration would constitute the 
heart of his statement. 

Frank opened with an account of his activities on Friday, April 25— a day 
that, by his telling, was devoted almost entirely to the preparation of the 
factory's payroll. The calculations involved in determining the amounts 
owed, a trip to Montag's to execute the necessary checks, a stop at the 
Atlanta National Bank to cash the checks, an afternoon spent filling some 
200 numbered envelopes with bills and coins and placing them in slots for 
distribution at the familiar elevator-lobby window— the superintendent 
mentioned each phase of the process. Save for an indirect refutation of 
Helen Ferguson's claim regarding her attempt to collect Mary Phagan's 
wages ("No one came into my office who asked me for a pay envelope or 
for the pay envelope of another"), he avoided any reference to the allega- 
tions against him. 

Friday dispensed with, Frank shifted to the case's most critical day, and 
he did so by stepping down from the stand and placing a sheaf of invoices 
that he contended had occupied him on the morning of Saturday, April 26, 
on the jury-box rail. Then, with what the Journal described as the earnest- 



300 AND THE DEAD SHALL RISE 

ness one can imagine him employing to address a buyer over his desk at the 
factory, he gave an explanation of the documents' significance. "Of all the 
mathematical work in the office of the pencil factory," he said, "the work I 
now have before me is the most important. It is very important that the 
prices be correct, that the amount of goods shipped agrees with the amount 
which is on the invoice, and that the terms are correct. I know of nothing 
else that exasperates a customer more than to receive invoices that are 
incorrect." 

Frank's presentation, dispassionate and cool, was the antithesis of Jim 
Conley's testimony. But rather than continue in this same formal yet acces- 
sible manner, the superintendent plunged into the fine points of the dozen 
or so invoices. Evidently, he believed he needed to establish that the work 
was so involved that it had required him, just as several witnesses had 
sworn, to defer the all-important financial sheet until the afternoon. Yet 
from the outset, there was something unnerving about the resulting assem- 
bly line of details. "The first order here is from Hilton, Hart & Kern Com- 
pany, Detroit," he began. Then, mechanically spitting out figures, he added: 
"The customer ordered ioo gross of No. 2 of a certain pencil, 125 gross of 
No. 3 and 50 gross of No. 4. We shipped 100 gross of No. 2,111 and l / 4 gross 
of No. 3 and 49 gross of No. 4. The amount of shipment of No. 3 is short of 
the amount the customer ordered. Therefore, there is a suspense shipment 
card, as you will notice." Mercifully for the jurors, Frank glossed over the 
specifics pertaining to the next few invoices, synopsizing one from S. H. 
Kress by saying, "These five and ten syndicates have a great deal of red 
tape." But such restraint was atypical, for within minutes he was embarked 
on a lengthy discourse on F W. Woolworth's freight policies, which were 
complicated, he stressed, by an 86-cent credit that the chain received for 
every 100 pounds of merchandise ordered. 

And so for the next hour Frank's statement would proceed. After deliv- 
ering his initial explication of the invoices as they related to shipping, he 
went back through them from a different perspective. "Starting here with 
order 7187 and continuing through 7197," he said, "there is a series of ini- 
tials, and these initials stand for the salesman who is credited with the order. 
In other words, if a man at the end of the year wants to get certain commis- 
sions on orders that come in, we have to very carefully look over those 
orders and see to whom or to which salesman or to which commission 
house or to which distributing agent that order is credited. So therefore, it 
takes a good deal of judgment and knowledge to know just to which sales- 
man to credit. Sometimes, I have to go through a world of papers to find just 
to whom a certain order is to be credited." 

Frank's zeal for the arcana of the invoicing chores he claimed to have 
performed on the morning of April 26 was made to appear all the more 



DEFENSE 301 

excessive by what seemed to be a corresponding unwillingness to discuss 
the prelunch period's most germane particulars. Yes, he gave what felt like a 
full accounting of his trip to and from Montag's to fetch the mail. (The 
superintendent did not, however, respond to Conley's charges regarding 
the outing. As he saw it, his version of events, due to its inherent logic, would 
carry the day.) And yes, he provided what by every indication was a believ- 
able description of the 1 1:45 appearance in his office of Corinthia Hall and 
Emma Clark, recalling the department in which the girls worked and the 
reason they'd dropped by —one of them had left a coat upstairs. But when it 
came to the main event— an event he got to only after a tortuous detour 
through the letters he'd dictated to stenographer Hattie Hall just before 
noon— he had little to say. In fact, his initial comments on the subject that 
the jurors and, by extension, all of Atlanta wanted to hear him address 
required just a third of a page of transcript: 

To the best of my knowledge, it must have been from ten to fifteen min- 
utes after Miss Hall left my office, when this little girl, whom I afterwards 
found to be Mary Phagan, entered my office and asked for her pay enve- 
lope. I asked for her number and she told me; I went to the cash box and 
took her envelope out and handed it to her, identifying the envelope by the 
number. She left my office and apparently had gotten as far as the door 
from my office leading to the outer office, when she evidently stopped and 
asked me if the metal had arrived, and I told her no. She continued on her 
way out, and I heard the sound of her footsteps and she went away. It was 
a few moments after she asked me this question that I had an impression 
of a female voice saying something; I don't know which way it came from; 
just passed away and I had that impression. This little girl had evidently 
worked in the metal department by her question and had been laid off 
owing to the fact that some metal that had been ordered had not arrived at 
the factory; hence, her question. I only recognized this little girl from hav- 
ing seen her around the plant and did not know her name, simply identify- 
ing her envelope from her having called her number to me. 

That in the wake of months of rampant and scurrilous speculation Leo 
Frank would devote a mere 236 words to the encounter at the center of the 
mystery struck many as passing strange. Surely, he had more to say on the 
matter. And, in truth, he did. Yet as the hundreds sitting in the courtroom 
and the thousands across Atlanta snapping up extras would to their further 
dismay discover, the superintendent first intended to give a thorough eluci- 
dation of the work he insisted he'd done on the financial sheet on the after- 
noon of April 26. 

In an effort to establish the sheet's significance, Frank introduced this 



302 AND THE DEAD SHALL RISE 

portion of his statement by unveiling a box containing the 140 varieties of 
pencils manufactured at the Forsyth Street factory. Laid out like candies, 
the bright wooden wands with their crisply stamped brand names and brass 
caps presented a vast array of colors and types, underscoring the need for 
a complex accounting system. The jury, however, barely caught a glimpse 
of the display, as Hugh Dorsey promptly objected that the sampler had 
not been entered into evidence. Judge Roan concurred, and the exhibit 
was removed. The data— as the superintendent consistently referred to it— 
would have to speak for itself. 

"Now, one of the most intricate operations," Frank began, holding up the 
financial sheet for his audience's perusal, was the "working out" of the num- 
bers used to establish the cost of raw material. "Wood slats," he apprised 
the room, "are figured at 22 cents per gross. Then, we figure rubbers accord- 
ing to the character of the pencil manufactured: 6 and l A cents cheapest, 

9 cents medium, 14 cents high-grade. Then come the tips. Then the lead, 
which is taken from this sheet, multiplying 15 cents for the better lead and 

10 cents for the cheaper lead. Then, 5 cents a gross has been figured out 
after months of careful keeping track of what we use [for] such materials as 
shellac, alcohol, lacquer, aniline, waxent and oils." To no one's surprise, the 
superintendent claimed that following lunch on April 26, he'd performed 
all of these computations. 

This was just the start. Owing either to obliviousness or, as many who 
heard him later concurred, to an unwillingness to face reality, Frank would 
set forth nearly every category of data charted on the financial sheet. 
Regarding an entry headed "Repacking," he explained: "One of the tricks of 
the trade, when we have a slow mover, some pencil that doesn't move very 
fast, is to take something fancy and put them in with these slow movers. That 
is a trick all manufacturers use in packing assortment boxes. We send into 
the shipping room and get some pencils which have already been packed 
and bring them in and repack them in the display box. Therefore, it is very 
necessary in figuring out the financial sheet to notice in detail the amount of 
goods packed and just how many of those had already been figured on some 
past report. We don't want to record it twice, or else our totals will be incor- 
rect. Therefore, showing the amount of goods which were repacked is neces- 
sary." At this juncture, the superintendent paused to indicate the line on the 
document where the proper notation had been made. Then he added: "That 
was figured by me on Saturday afternoon, April 26. It shows right here. That 
is my writing right down there: '18 gross 35-X pencils, 10 gross 930-X.' " 

Quite apart from issues of motivation, Frank's arrogance here was 
astounding. In fact, in the midst of one especially long-winded remark, he 
gazed at the paper in his hands and declared: "This sheet, the financial, 



DEFENSE 303 

I may say is the child of my own brain, because I got it up. The first one 
that ever was made, I made out." Whereupon he ran through various 
other data— "Investments," "Values," "Fixed Charges"— that the document 
allowed him to keep abreast of, boasting that he always knew where the fac- 
tory stood regarding everything from the price of labor to net and gross 
profits. 

By 4:35, when Judge Roan ordered a brief recess, Frank had been ratch- 
eting on for the better part of two and a half hours. And while he may have 
convinced some of those listening that the work he'd done on the financial 
sheet the afternoon of the murder demanded intense concentration, it's 
doubtful he persuaded anyone to the related conclusion that he was guilt- 
less. Indeed, the more probable reactions were suspicion and disbelief. 
Here was a man who for all his reliance on the precise language of manage- 
ment seemed to be manifesting a kind of hysteria. 



Had Frank ended his statement at this juncture, there can be little doubt 
that it would have been judged an unmitigated disaster. Yet finally, he took 
up the genuine issues at hand. And he did so in surprisingly human— and 
humanizing — terms. 

After the recess, Frank addressed the actions he'd undertaken in the 
immediate aftermath of Mary Phagan's murder that had made him a sus- 
pect in the crime. Regarding his much discussed anxiety on the morning the 
body was discovered, he confided: 

Gentlemen, I was nervous. I was completely unstrung. Imagine yourself 
called from sound slumber in the early hours of the morning, whisked 
through the chill morning air without breakfast, to go into that undertak- 
ing establishment and have the light suddenly flashed on a scene like that. 
To see that little girl on the dawn of womanhood so cruelly murdered— 
it was a scene that would have melted stone. Is it any wonder I was 
nervous?" 

At long last, Frank was attempting to win the understanding of the 
twelve men who would decide his fate. Which was why, as he continued his 
account of the events that culminated in his arrest, he sought to portray 
himself as a victim of both misunderstanding and sloppy and corrupt police 
work. As an example of the former, there were the rumors that arose from 
the fact that his wife did not visit him during his first days in jail. After 
terming such rumors "dastardly," the superintendent attempted to correct 
the record, proclaiming: 



304 AND THE DEAD SHALL RISE 

The date I was taken into custody, my wife was there. But I thought I 
would save her the humiliation of seeing me in those surroundings. I 
expected any day to be turned loose and returned once more to her side at 
home. Gentlemen, we had to restrain her. She was willing to be locked up 
with me. 

Then there was the detectives' behavior, particularly during the headquar- 
ters encounter designed to force a confession from Lee. After the effort 
failed, Frank asserted, John Black and Harry Scott "grilled the negro and 
put words into his mouth that twisted not alone [my] English but distorted 
my meaning. I decided then and there that if that was the line of conduct 
they were going to pursue, I would wash my hands of them." It was in keep- 
ing with this choice, the superintendent added, that he refused to meet with 
Jim Conley, explaining: 

I did not speak to Conley not because I did not want to . . . but because 
I didn't want to have things twisted. I knew that there was not a word that 
I could utter that they would not deform and distort and use against me. 

Slowly, surely, Frank had come alive, and he finished in impressive 
fashion: 

Gentlemen, I know nothing whatever of the death of little Mary Pha- 
gan. I had no part in causing her death nor do I know how she came to her 
death after she took her money and left my office. I never even saw Conley 
in the factory or anywhere else on that date, April 26, 1913 . . . 

The statement of the negro Conley is a tissue of lies from first to last. I 
know nothing whatever of the cause of the death of Mary Phagan and 
Conley's statement as to his coming up and helping me dispose of the 
body, or that I had anything to do with her or to do with him that day is a 
monstrous lie . . . 

The story as to women coming into the factory with me for immoral 
purposes is a base lie and the few occasions that he claims to have seen me 
in indecent positions with women is a lie so vile that I have no language 
with which to fitly denounce it . . . 

Gentlemen, some newspaper men have called me "the silent man in the 
tower," and I have kept my silence and my counsel advisedly, until the 
proper time and place. The time is now; the place is here; and I have told 
you the truth, the whole truth. 

Coming at the conclusion of a discourse that had consisted largely of 
tedious tabulations and rote recitations, Frank's forceful peroration moved 



DEFENSE 305 

nearly all who heard it. "Very few in the courtroom had much to say until 
they had managed to subdue that troublesome lump in their throats," 
observed the Georgian, Not surprisingly, those most affected were mem- 
bers of the superintendent's family, particularly Lucille, who burst into 
tears, prompting Leo to descend to her side and take her in his arms. Mean- 
time, a stout county deputy dabbed his eyes while juror Marcellus Johen- 
ning gave vent to several deep sobs. "That boy put it all over you and me," 
Luther Rosser was heard to mutter huskily to Reuben Arnold as the two 
made their way to the door. 

The next morning, however, the assessments were decidedly more sober, 
for no matter how engaging Frank had been at the end, the fact remained 
that taken as a whole, his statement was problematic. Commented the 
Georgian's James B. Nevin: "There will be those who see evidence of mon- 
strous coldness and unfeeling design." Most telling of all was the news that 
Rosser and Arnold had not read the superintendent's remarks in advance. 
Like many parts of the lawyers' presentation, this last one had been 
made with an apparent lack of regard for either their client's vulnerability 
or their own. 



TWELVE 



All that remained before Leo Frank's fate was consigned to the jury 
were the final evidentiary maneuvers and rhetorical flourishes. First 
among these was the state's presentation of its case in rebuttal, and 
if there were any doubts regarding what its main element would be, they 
were dispelled shortly after Tuesday's session opened when Hugh Dorsey 
suggested that Lucille and Rae Frank leave the courtroom, as what was to 
come "would be embarrassing for ladies to listen to." 

Dorsey launched his attack on Frank's character with an examination of 
Daisy Hopkins. But the factory superintendent's alleged consort thwarted 
the solicitor, continuing to maintain that she possessed no knowledge of any 
trysting place in the plant basement. Moreover, when Dorsey attempted 
to quiz her regarding what the Journal termed "unprintable" acts she'd 
purportedly boasted of performing with Frank, Judge Roan upheld the 
defense's objection, declaring: "You cannot bring any new criminal charge 
against this defendant." 

Still, Dorsey pressed forward, summoning four witnesses who denigrated 
the trustworthiness of Hopkins. He followed these with ten witnesses who 
lauded the credibility of C. Brutus Dalton, who'd not only connected Frank 
to incidents of sexual impropriety but corroborated Jim Conley on the sub- 
ject. Then the solicitor, in the Journal's phrase, "sprang a sensation," calling 
a former factory employee who swore that regardless of his many denials, 
the superintendent knew Mary Phagan: 

"Did you ever see Mr. Frank talking to Mary Phagan?" Dorsey asked 
1 6-year-old Willie Turner. 
"Yes, on the second floor." 
"How long was that before the murder?" 
"About the middle of March." 
"What was said?" 

"I heard her say that she had to work." 
"What did he say?" 
"He said he was the superintendent of the factory." 



VERDICT 307 

"How was she acting?" 

"She backed off from him, and he walked toward her." 

After that, the defense objected. "They want to bring out another 
charge," roared Reuben Arnold. 

But the prosecution held firm. Responding to Arnold's allegation, Frank 
Hooper insisted: "It is not true, and it is not the point at issue." Whereupon 
the gallery burst into applause. A vigorous rapping from Judge Roan imme- 
diately restored order, yet the outburst provided one more indication of 
the deteriorating atmosphere. Worse, following a moment's consideration, 
Roan allowed l\irner's observations to remain in the record, and though 
Luther Rosser, in his cross, got the boy to admit that he could not give a 
description of Mary Phagan, the point seemed settled— Frank had been 
acquainted with the girl. 

The state devoted the bulk of Tuesday's remaining hours to countering 
other facets of the defense's case. 

From Roy Craven and E. H. Pickett, Albert McKnight's supervisors at 
Beck & Gregg Hardware, Dorsey elicited testimony reaffirming the verac- 
ity of Minola McKnight's pretrial statement alleging suspicious behavior on 
Frank's part in the aftermath of the murder. Swore Craven: 

I was present when Minola made her affidavit. I told her that Albert had 
said that [she] overheard Mrs. Frank tell Mrs. Selig that [on the night of the 
crime] Mr. Frank came home drinking and made Mrs. Frank get out of bed 
and sleep on a rug by the side of the bed ... he had murdered somebody. 
Minola [confirmed] that this was what happened. 

Added Pickett: 

Minola . . . said she was instructed not to talk and her wages had been 
raised by the Seligs. 

Dorsey next introduced several streetcar employees to attest that the 
English Avenue trolley that had carried Mary Phagan downtown on April 
26 often ran ahead of schedule. The assertions potentially placed the victim 
at the factory earlier than had been thought, lending further credence to 
the prosecution's murder-day time line. One of the streetcar men, a conduc- 
tor named George Kendley, claimed that he'd actually seen little Mary 
walking toward the plant before 12:05 on the afternoon of the tragedy, 
which would have put her in the superintendent's officer prior to Monteen 
Stover's arrival. 



308 AND THE DEAD SHALL RISE 

During Tuesday's final hours, Dorsey took a second shot at present- 
ing specific allegations of impropriety against Frank by summoning Nellie 
Wood— the slatternly former factory worker who'd testified at the inquest 
that the superintendent once fondled her breasts. But Judge Roan upheld 
the defense's objection, telling the solicitor: "The law shuts you out." 
Boomed the headline atop the next morning's Constitution: state is hard 

HIT BY JUDGE'S RULING BARRING EVIDENCE ATTACKING FRANK. 



From the moment the proceedings reconvened at 9 a.m. Wednesday, Dorsey 
could do no wrong. First Roan, over the objections of Rosser and Arnold, 
ruled that the solicitor could call witnesses to take issue with the defense's 
assault on the state's medical evidence. Minutes later, Dr. Clarence Johnson 
and Dr. George Niles seconded Dr. Henry F. Harris's findings regarding the 
time of Mary Phagan's death, and Dr. John Funke echoed Harris's determi- 
nation that she'd suffered some unspecified form of sexual violence. 

Dorsey then struck a blow at the defense's claim that the factory's metal 
room floor was frequently stained by the blood of injured workers, calling a 
former plant machinist named J. E. Duffy, who testified that when he was 
cut in an accident there, his wound was promptly bandaged. 

With that, Dorsey reintroduced the topic around which his case in rebuttal 
revolved, summoning a young former factory employee named Myrtice Cato : 

"Are you acquainted with the general character of Leo M. Frank prior 
to and including April 26, 1913?" he asked. 
"Yes." 

"Was that character good or bad?" 
"Bad." 

"How long had you worked there?" 
"Three and a half years." 

With that, Dorsey turned the witness over to the defense. But Rosser, 
knowing that if he challenged Myrtice, the solicitor would be permitted to 
delve into the particulars upon which her allegation was based, simply told 
the girl: "Come down." 

Dorsey's next witness was another former factory worker, and she, too, 
responded in the affirmative when asked if Frank's general character was 
bad. But where with her predecessor, the solicitor had been content to 
leave it at this, with Maggie Griffin he would attempt to go further. Indicat- 
ing that he knew he was testing the limits, Dorsey informed his witness, 
"Now I am going to ask you a question, and I don't want you to answer it 
until the judge tells you whether you can or not." Then he inquired: "Are 



VERDICT 309 

you acquainted with the general character of Leo M. Frank as to his rela- 
tions with women?" 

Following the expected objection, Judge Roan sent the jury out, and 
the opposing sides faced off. As Rosser saw it, the court had already 
found against such testimony. "This, however, is different," replied Dor- 
sey. Though he vowed to abide by Roan's ruling as far as specific incidents 
were concerned, he contended that the defense, by examining several girls 
regarding Frank's overall conduct with them, had itself broached the 
broader subject. Furthermore, he asserted that one of the female witnesses 
put up by the the defense had once disappeared into a plant dressing room 
with the superintendent. That witness: Rebecca Carson. According to the 
solicitor, the law granted him the right to use Griffin to rebut Carson's attes- 
tations. For Roan, Dorsey 's logic was persuasive, although the judge ordered 
him to refrain from posing queries about Carson until she could be recalled. 
With that, the jury returned, and the solicitor picked up where he'd left off: 

"Do you know the general character of Leo M. Frank as to his attitude 
toward women?" Dorsey again asked Griffin. 
"Yes, I do." 
"What is it?" 
"Bad." 

Owing to the fact that Carson could not be immediately located, the 
solicitor at this point turned Griffin over to Rosser, who once more refused 
to cross-examine. 

The bill for placing Frank's character in evidence had come due, and 
Dorsey intended to see that it was paid in full. The morning's remaining 
hours would see a steady parade of former factory employees take the 
stand to level essentially unchallenged blows to the superintendent's repu- 
tation as it pertained to female workers. To each of these women and girls, 
the solicitor posed the same question: "Do you know Mr. Frank's character 
for lasciviousness?" And from each he received the same answer: 

"Bad," declared Mrs. C. D. Donnegan. 

"Bad," declared Mrs. H. H. Johnson. 

"Bad," declared Marie Karst. 

"Bad," declared Nellie Pettis, echoing her testimony at the coroner's 
inquest. 

"Bad," "bad," "bad," "bad," added Mary Davis, Mary Wallace, Estelle 
Winkle and Carrie Smith. 

Throughout this ordeal, Frank's lawyers sat on their hands. 



310 AND THE DEAD SHALL RISE 

And Dorsey wasn't done. He called two former factory employees to 
corroborate Willie Turner's testimony that Frank had been acquainted with 
Mary Phagan. First came young Ruth Robinson, who swore that she'd once 
seen the superintendent stop at little Mary's workplace and show her how 
to insert an eraser into a nearly completed pencil. Then came Dewey 
Hewell, the 16-year-old whose return to Atlanta the week before from 
a Cincinnati home for unwed mothers had sparked headlines. After es- 
tablishing that the girl had been employed at the pencil plant during the 
months preceding the murder, the solicitor inquired: 

"During the time you worked there did you know Leo M. Frank?" 

"Yes, sir." 

"Did you know Mary Phagan?" 

"Yes." 

"Did you ever see Frank talking to Mary Phagan?" 

"Yes." 

"How often?" 

"Sometimes two or three times a day." 

"What did you see him do?" 

"I saw him put his hand on her shoulder." 

"Did he call her by any name, and if so, what?" 

"Yes, sir. He called her Mary." 

"Where did he stand when he spoke to her?" 

"He would stand close to her." 

Though Rosser at least examined Robinson and Hewell, he did so tenta- 
tively, doing no more than ascertaining that little Mary was always in the 
company of a group of employees when the two saw Frank talking with her. 

By the time the defense finished with Robinson and Hewell, Rebecca 
Carson had made her way to court. Dorsey had only one question for her: 
"Did you ever go into the dressing room on the fourth floor with Leo M. 
Frank?" 

"No," she answered emphatically. 

After Carson stepped down, Dorsey surprised Rosser and Arnold by 
calling Myrtice Cato as his initial rebuttal witness. "Did you ever see Miss 
Rebecca Carson go into the private dressing room on the fourth floor with 
Leo M. Frank?" he asked. 

"Yes," replied Myrtice. 

"How often did you see them go in there together?" 

"I never saw it but twice," the girl conceded. Then she added: "That ain't 
all I know." 

"Wait a minute," shouted Rosser, his face pinkening. Yet just that 



VERDICT 311 

quickly, the lawyer caught himself, and in a milder tone, he briefly sifted 
Myrtice, establishing that on both of the purported occasions, plenty of 
other employees, once more, were standing nearby. Not that this was how 
the girl's appearance ended. During his redirect examination, Dorsey asked 
Myrtice how she happened to have observed Frank and Carson enter the 
dressing room. "I was looking up the aisle," she said, then again boasted: 
"And that ain't all I saw, either." 

Dorsey followed Myrtice with the witness the defense had been 
expecting— Maggie Griffin. Like her coworker, Maggie maintained that 
she'd seen Frank and Carson disappear into the fourth-floor factory dress- 
ing room. "Yes, sir," she said. "Three or four times." Worse, she contended 
that they had "stayed in there fifteen to thirty minutes." To this, Rosser suc- 
cessfully objected, but as to the larger issue, he again had to settle for the 
concession that on the occasions under discussion, "other women were 
about." 

How Dorsey could do still more damage to Frank on the character issue 
was at this juncture difficult to imagine, but he had one last blow to inflict, 
and he used the morning's final witness to inflict it. Mamie Kitchens was yet 
another pretty factory girl, and after nailing down that she'd worked on the 
plant's fourth floor for two years and was still an employee there, the solic- 
itor secured the fact that she had not only not been called by the defense to 
attest to Frank's rectitude but that several other females in her department 
had been similarly ignored. Having thereby implied that the superintend- 
ent was fearful of what some members of his current workforce would say 
if placed on the stand, Dorsey threw his haymaker, asking: "Were you ever 
in the dressing room on the fourth floor with Miss Irene Jackson when this 
defendant, Leo M. Frank, came in?" 

"Yes," answered Kitchens. "I was in the dressing room with Miss Irene 
Jackson when she was undressed. Mr. Frank opened the door, stuck his 
head inside. He did not knock. He just stood there and laughed. Miss Jack- 
son said, 'Well, we are dressing, blame it,' and then he shut the door." 

Though Rosser managed in his cross-examination of Kitchens to estab- 
lish that the incident to which she'd referred had occurred during business 
hours, such an admission could not soften the impact of either this girl's tes- 
timony or that of those who'd come before. Boomed the front-page banner 
atop the Georgian's midday edition: 

WOMEN ARRAIGN FRANK'S MORALS 

While Hugh Dorsey would have been hard-pressed to find a better stop- 
ping point, a few other elements of the defense's case still worried him; he 
devoted Wednesday afternoon to tying up loose ends. For starters, he sum- 



312 AND THE DEAD SHALL RISE 

moned two men who often rode the English Avenue streetcar and swore that 
in the days immediately after the murder, W. M. Matthews and W. T. Hollis 
had both said that on her last trip, Mary Phagan had sat next to George Epps. 
During cross-examinations, Rosser established that one of these witnesses 
was the son of a police officer involved in the investigation. Still, the charges 
hurt. Dorsey then recalled Boots Rogers and Sergeant L. S. Dobbs, each of 
whom maintained that on the morning the body was discovered, they had 
checked alternate entrances into the factory basement and found them 
"cobwebby and dusty." Having thereby partially undermined the notion that 
the victim's remains could have reached the plant's lower level via a route 
that contradicted the state's theory, the solicitor summoned several individ- 
uals who took issue with Frank's declaration that the much vaunted financial 
sheet required three hours to fill out. With that, he was done. 



There wasn't much the defense could hope to accomplish during its surre- 
buttal. Yes, Rosser and Arnold put up a pawnbroker to attest that one of the 
men who'd sworn that Mary Phagan's trolley often reached town ahead of 
time had hocked his watch several months before the murder and would 
have been hard-pressed to make such a judgment. Yes, they called several 
witnesses who asserted that George Kendley, who claimed he'd spotted lit- 
tle Mary walking into the factory before 12:05 on the day of the crime, was 
an avid anti-Semite who'd been publicly voicing his views. Declared J. M. 
Asher: "Kendley was talking real loud and discussing the Frank case and he 
suddenly said: 'The damn Jew, they ought to hang him.' " Echoed T. Y 
Brent: "Kendley said Frank wasn't anything but an old Jew," and if the court 
didn't get him, he knew men who would. And yes, over Dorsey's objection, 
Frank was permitted to retake the stand to make an addendum to his 
unsworn statement. Proclaimed the superintendent: 

In reply to the statement of the boy [Willie Tbrner] that he saw me talk- 
ing to Mary Phagan when she backed away from me, that is absolutely 
false, that never occurred. In reply to the two girls, Robinson and Hewell, 
that they saw me talking to Mary Phagan and that I called her "Mary," I 
wish to say that they are mistaken. It is very possible that I have talked to 
the little girl in going through the factory and examining the work, but I 
never knew her name. 

In reference to the statements of the two women who say that they saw 
me going into the dressing room with Miss Rebecca Carson, I wish to state 
that that is utterly false. It is a slander on the young lady, and I wish to state 
that as far as my knowledge of Miss Rebecca Carson goes, she is a lady of 
unblemished character. 



VERDICT 313 

Save for these flurries, the defense was finished, and at 5:30, court 
adjourned for the day. 



Closing arguments commenced at 9:05 Thursday morning, with the state, in 
the person of Frank Hooper, speaking first. That Dorsey let his co-counsel 
open was astute. Smooth and reassuring rather than confrontational and 
irreverent, elegantly attired as opposed to modestly dressed down, Hooper 
was well suited to lay out the case that the solicitor would then attempt to 
hammer home. 

Starting with the issue of character, Hooper challenged the jurors to 
choose between the defense's witnesses and the state's. The girls who'd tes- 
tified for Frank were for the most part currently employed at the factory 
and therefore, he asserted, susceptible to the superintendent's manipula- 
tions. In order to keep their jobs, they'd said what they'd been told to say. 
The girls who'd testified against Frank, however, were primarily former 
employees and hence free to speak the truth. That was why, Hooper added, 
the defense had declined to cross-examine them. Gesturing to Rosser and 
Arnold, he declared: 

They had the right to inquire of these witnesses on what grounds they 
based their opinion of the defendant's bad character. What did they do? 
They dismissed the witnesses without making any inquiries. 

The disparity between the praises uttered by the defense's character 
witnesses and the reproofs voiced by the state's could not, of course, be 
explained as merely a function of the National Pencil Company's financial 
leverage. Too many men and women over whom the Forsyth Street opera- 
tion held no sway had taken the stand on Frank's behalf. And even though 
nearly all of these citizens were Jewish, their uniformly high positions in 
Atlanta society lent considerable credence to their endorsements. If the 
prosecution was to convince the jury that the accused truly was morally 
reprehensible, it needed to negate these testimonials, too. Which was what 
Hooper now tried to do. Fixing his audience with a confident gaze, he began 
by acknowledging the inherent paradox, asserting: 

It may seem strange, gentlemen, that a man who associated with 
bankers, businessmen and who's the head of a big concern should have 
sought out a man like Dalton for company. But have you ever considered 
that when he was dealing with a certain side of his life, he sought compan- 
ions congenial to those pursuits? 



314 AND THE DEAD SHALL RISE 

That said, the lawyer unveiled what for the state would be a defining 
metaphor: 

You doubtless have read Dr. Jekyll and Mr. Hyde. This defendant, like 
Dr. Jekyll when the shades of night come, throws aside his mask of 
respectability and is transformed into a Mr. Hyde. And then he does not 
seek the companions of Dr. Jekyll, but like Hyde goes to a lower stratum 
where he picks up Dalton and his kind and goes with them instead of with 
the men who have come here to give him a good character. 

The state's stance on Frank's character articulated, Hooper addressed 
his next subject, Jim Conley. Here again, he depended largely upon a figure 
of speech. The Negro, he averred, was to the case what Stone Mountain— a 
massive granite outcropping just east of the city— was to Atlanta: intrinsic 
and unavoidable. "I don't blame the defense for pitching their fight on Con- 
ley," he said. "They had to break him." For three days, Luther Rosser had 
pitted his "wily, trained mind" against that of the "ignorant black man." The 
result: like Stone Mountain, Conley still stood. "And why didn't they break 
him?" Hooper asked rhetorically. Whereupon he paused, then said: 

It was because Conley, after all the lies he had told, eventually had 
arrived at the truth, and the truth is stronger than these lawyers. 

From the state's vantage, both its star witness's testimony and the allega- 
tions concerning character were just part of a broader demonstration of 
guilt rooted in accounts of Frank's actions before the murder and in its 
aftermath. So now Hooper gave the jurors a selective recapitulation. First, 
of course, there was the engagement of Conley as a lookout and his posi- 
tioning in the factory lobby on the morning of April 26. Then came Mary 
Phagan's arrival. "Without knowing the horrible death that awaited her," 
the lawyer said, "she went blithely to where sat this defendant to get her 
$1.20. Since that day, not a word has come from her lips." 

At this, little Mary's mother, who at the session's outset had taken a seat 
at the prosecution table, began to weep. 

With Mary Phagan dead, Hooper declared, Frank focused on the press- 
ing matter of disposing the body and concealing the crime. Thus he sum- 
moned Conley to the second floor. Despite the superintendent's purported 
hand- wringing, the lawyer contended that his initial moves— the transport- 
ing of the remains to the basement, the trip to the fourth floor to assure 
himself that workers Denham and White remained in the dark and to 
escort Mrs. White from the building— were cool and calculating. So, too, 



VERDICT 315 

were his subsequent actions. He sent Newt Lee away at 4 p.m. to give Con- 
ley a couple more hours to return to the factory and burn the body. He 
ordered the night watchman to help Gantt search for his shoes because the 
fired bookkeeper had been a friend of little Mary's and he didn't want him 
snooping around the place. He telephoned Lee from home that evening to 
make certain that his handiwork remained undetected. Frank's lone slip — 
the murder notes. Asserted Hooper: 

The idea that Jim would have written those notes himself is absurd. You 
know these negroes. You know their traits. Would one of them have done a 
thing like that? What object could Conley possibly have had in planting 
those notes by the body saying that a negro had committed the crime? 

Come Sunday morning, of course, the state maintained that Frank's 
dread had returned. "Even before he was suspected, he showed unmis- 
takable signs of nervousness," Hooper reminded the jurors. Yet he soon 
regained his sangfroid. Beginning Monday, "he made a concerted effort" 
to cast suspicion on Lee. By changing his mind as to whether the night 
watchman had correctly punched the time clock in the hours prior to the 
body's discovery, the superintendent in effect dispatched Detective Black 
to Lee's house "where somebody had planted a shirt." Here, Hooper held 
up the garment in question, allowing the twelve men who sat before him 
to examine how it "appeared to have been wadded up and wiped in 
blood." And if that wasn't proof enough of the garment's fraudulence, the 
lawyer, revealing that the prosecution was as willing to play to racial 
stereotypes as the defense, proclaimed: "The shirt had no odor of the 
negro." 

By the state's lights, the shirt found at Lee's home was simply the first 
of many defense deceptions. Others included the bloody stick and piece of 
pay envelope located in the factory lobby several weeks after the murder. 
"There was also," Hooper recalled, "a fellow named Mincey. You remember 
that my brother Rosser examined Jim very closely about this man. That 
was done, you all understand, for the purpose of laying the foundation to 
impeach Jim. The point is: Where is Mincey now? It looked like this whole 
fight might turn on Mincey, but we haven't heard one word from him." 

With that, Hooper— whose job had been merely to present an outline of 
the state's presentation— was essentially done, although he did have a last 
point to make: The jurors, far from being distinct from their fellow citizens, 
were Everymen. Declared the lawyer: "I have heard men say that they 
thought one thing, but when they were on a jury they had to decide another 
way, but it was never intended that such should be the case." 



3l6 AND THE DEAD SHALL RISE 



Reuben Arnold led off for the defense. Where Hooper's job had been to set 
a tone, his was that and more. Standing before the bench, he began by 
addressing his counterpart's final comment, remarking conversationally: 
"My friend Hooper said that a juror is not different from anyone else on the 
streets trying to get at the truth." Then he boomed: 

God grant that we can get away from the streets. What's the use of hav- 
ing juries if we don't. Juries should be set up on a hill, away from the multi- 
tude where prejudice and passion cannot reach them. 

That after four weeks of crowds outside the courthouse and barely 
restrained galleries within, Arnold would start with a plea to the jurors to 
resist popular opinion was no surprise. What followed, however, was 
startling— the lawyer asserted that the hostility that had dogged Leo Frank 
from the outset arose from the fact of his Jewishness.The defense was open- 
ing its argument by claiming that religious prejudice against the factory 
superintendent had permeated the case. Referring to one of the state's con- 
cluding witnesses, streetcar conductor George Kendley, Arnold asserted: 

This man Kendley said they ought to hang Frank because he is a Jew. I'd 
rather be in Leo Frank's house than his. I'd rather be in Leo Frank's shoes 
than his. 

Kendley's discriminatory feelings, Arnold noted, were rooted in the fact 
that "Frank comes from a race of people that have made money." Further- 
more, he added, the streetcar conductor wasn't the only Atlantan who har- 
bored such feelings: 

I tell everybody, all within the hearing of my voice, that if Frank hadn't 
been a Jew he never would have been prosecuted. I am asking my kind of 
people to give this man fair play. Before I'd do a Jew injustice, I'd want my 
throat cut from ear to ear. 

And so the issue that had long been percolating beneath the surface had 
come into the light. Frank's prosecution, Arnold charged, was motivated by 
anti-Semitism. The lawyer did not, however, linger on the claim, devoting 
the remaining minutes before and the hour after the lunch recess to undo- 
ing the damage the state had done to the superintendent's reputation. 

Much of what Arnold had to say regarding the allegations of moral turpi- 
tude against Frank was predictably indignant. He termed C. Brutus Dalton 



VERDICT 317 

and his ilk "jail birds and convicts, the dregs of humanity," while dismissing 
the factory girls who'd denigrated the superintendent's character as "dis- 
gruntled former employees." As to the possibility that Frank might actually 
have seduced any of his workers, he fairly scoffed: "If he had started some- 
thing with one of the girls, demoralization would have reigned in the whole 
place. He couldn't have gotten any work out of the other girls, and Montag 
would have fired him." 

Yet Arnold pitched the bulk of his argument on a higher plane, one pred- 
icated on the assumption that the jurors, like himself, were worldly men. In 
view of the concerns regarding power, privilege and predation raised by the 
Phagan murder, this was a risky tack; in view of the many ugly allegations 
that were part of the record, the lawyer had scant choice but to pursue it. 

The basic point Arnold hoped to convey was that a majority of the 
improper acts attributed to Frank were, in fact, not improper at all. First, 
there was what he called "the little dressing room incident," of which he 
asked the jurors: 

What did it amount to? Wasn't everything done openly and above 
board, and in broad daylight? There was no bath in the dressing room, no 
toilet, and the girls themselves admit that there had been flirting in that 
room. Gentlemen, isn't that exactly the way you'd expect the superinten- 
dent of a big factory to conduct himself? 

Then there was the charge that Frank had placed his hands on Mary Pha- 
gan's shoulders: 

You can go out here to Piedmont Park any Sunday afternoon and see 
five hundred girls and boys with hardly anything on, and the boys are grab- 
bing them by the arms and legs and are having a gay old time. And I don't 
mean to say by this that I think the world is going to the dogs. It's a sign 
that we are getting more broad-minded, that we are learning some sense 
about these matters. And let me tell you something, gentlemen of the jury, 
deliver me from one of these prudish fellows that never looks at a girl and 
never puts his hands on her and is always talking about his own virtue. He's 
the kind I wouldn't trust behind the door. 

And then, finally, there was the allegation that the pencil plant itself was a 
den of iniquity, with Frank as its corrupting head. To this, the superinten- 
dent's co-counsel simply said: "The factory is no better and no worse than 
any other factory of about that size in the city of Atlanta." 

Arnold's intention here was to relegate all the insinuating testimony 
against Frank to the realm of unsubstantiated gossip and to elevate the gen- 



3l8 AND THE DEAD SHALL RISE 

eral level of discourse. But lest he fail in this effort, he struck a different 
tone in his concluding comments on the superintendent's character: 

Gentlemen, we are not claiming perfection for this defendant any more 
than we claim it for ourselves or than you claim it for yourselves; and no 
more than Mr. Dorsey and his associates should claim it for themselves. 
Let the man who is innocent cast the first stone. We are not trying this man 
on everything that may have been said about him. We are trying him for 
murder. 

That said, Arnold launched a wide-ranging assault on the circumstantial 
evidence that formed the foundation of the state's case, vowing: "Before I 
get through I'm going to show you there never was such a frame-up against 
a man since God made the world." 

The frame-up got started, Arnold declared, because the authorities at 
first believed that Frank was the sole person in the factory at the time of 
Mary Phagan's murder who'd had the opportunity to commit the crime. 
"Nobody knew that Jim Conley was down there by that elevator hole," he 
reminded the jury. Consequently, Detectives Black and Starnes had pur- 
sued only those clues that might implicate the superintendent, particularly 
the bloodstains and strands of hair located in the building's metal room. 
This, insisted the lawyer, was a tragic misstep, for the blood and hair were 
plants made by their reward-obsessed discoverer, R. P. Barrett. "Would 
Frank have tried to hide the blood by smearing it with haskoline and calling 
attention to it?" he inquired. Would a man as meticulous as the superin- 
tendent have left the hair in plain sight? "It's the clumsiest botch I ever 
saw." But the investigators, he ruefuly added, had made up their minds and 
refused to entertain other possibilities. 

While the plot's preliminary acts unfolded, asserted Arnold, no one in 
Atlanta followed more attentively than Conley. From the newspapers, talk 
around the factory and, after his own arrest, talk inside the Tower, the 
Negro posted himself on every development. "He had weeks and weeks to 
do it. He knew they were trying to make a case against Frank." Thus, Con- 
ley was ready when the police, after determining that he could not only 
write but had written the murder notes, accused him of involvement in little 
Mary's demise. "He lay in his cell and conjured up the story he has told, and 
it is monstrous." With that, the lawyer had introduced one of his central 
premises. Where the state contended that the Negro's account was what 
remained after the initial deceptions were stripped away, the defense— in 
its lone nod to Jim's intelligence— argued that it was the self-serving work 
of a splendid imagination. 



VERDICT 319 

In an effort to provide further proof of Conley's cunning, Arnold at this 
point brandished copies of the Negro's various affidavits, marveling aloud 
at the care with which he had "felt his way along," altering inconvenient 
details at the suggestion of the detectives. Yet even so, the lawyer argued, 
Conley's testimony contained a sufficient number of absurdities to render it 
implausible. For one, there was his assertion that prior to the murder, he'd 
often stood guard at the factory building's Forsyth Street entrance while 
Frank consorted with women upstairs. "That's ridiculous," declared Arnold, 
citing that during the period in question, the plant shared the door with 
another tenant, the Clark Woodenware Company. "Frank wouldn't have 
had any right to lock the place up and shut them out." Then there was his 
claim that on the afternoon of the crime, despite having just heard little 
Mary scream, he allowed Monteen Stover to ascend to the second floor 
unchallenged. Staring directly at the jurors, the lawyer exclaimed, "Gentle- 
men, it fatigues my indignation to suppose that such splendid citizens as 
yourselves would believe a lie like that." Then there were his statements 
regarding two other April 26 visitors, Emma Clark and Corinthia Hall. 
"Bear in mind," urged Arnold, "that these women, in testimony corrobo- 
rated by other witnesses, say they came to the factory 30 minutes before 
Conley says they were there." And as for his allegation that Frank hid him 
in a wardrobe to avoid being seen by the women, the lawyer noted, "Even if 
Frank had killed the girl, he could have let Emma and Corinthia come in 
and see Conley without arousing their suspicion. He was the superintend- 
ent, and Conley worked there." Most preposterous of all was Jim's con- 
tention that after he'd taken down the murder notes, Frank remarked, 
"Why should I hang? I have wealthy people in Brooklyn." Glancing around 
the room, Arnold asked, "Do you reckon a white man ever would have 
made a statement like that? Do you reckon he would have broken down 
and yelped like a dog?" At this, jurors and spectators alike chortled. 

Having thus in two hours exposed more flaws in Conley's story than 
Luther Rosser had in three days, Arnold accused the Negro of Mary Pha- 
gan's murder: 

Conley admits he was right there behind the elevator when that little 
girl came into the factory. And he was right there when she came down. It 
took but two steps to get her mesh bag. Probably his aim was robbery. Here 
was a drunken, crazed negro, hard up for money. The little girl probably 
held to it when he grabbed it. He struck her in the eye and she fell. It is but 
the work of one moment, gentlemen, to push her into that elevator shaft. 

Why go further than this black wretch there by the elevator shaft, fired 
with liquor, fired with lust and crazy for money? Why, negroes rob and rav- 



320 AND THE DEAD SHALL RISE 

ish every day in the most peculiar and shocking way. But Frank's race don't 
kill. They are not a violent race. Some of them may be immoral, but they go 
no further than that. 

With that, Arnold briefly returned to the defense table, retrieving a six- 
foot-high chart that presented the defense's minute-by-minute account of the 
whereabouts of Frank and other principals in the case on the day of the crime. 

Though the chart's crisply lettered entries cataloged everything from 
Minola McKnight's 7:30 a.m. arrival at the Franks' home to fix breakfast to 
the 10:25 PM - departure of the family's poker party guests, Arnold was 
interested only in details pertaining to the period between noon and three 
in the afternoon. Which was why he began by pointing to the lines noting 
that Monteen Stover reached the pencil factory at 12:05, followed by Mary 
Phagan at 12:12. "No matter how much Mr. Dorsey tries to move up the 
streetcar schedule," the lawyer said, these times had been verified by the 
state's witnesses as well as the defense's, and they established that even if 
Frank was not in his office when Stover appeared, this did not support the 
claim that he was at that moment choking the life out of little Mary. She was 
not yet on the premises. That said, Arnold ran his hand down the chart, 
stopping at a notation reading "12:20— Lemmie Quinn."To the lawyer, this 
was another critical moment, and he lingered on it: 

The sworn evidence gives Frank only eight minutes between the time 
Mary Phagan came to the factory and the time Quinn came. Could Frank 
have attacked her in just eight minutes? And then been back at his desk, a 
normal man digging into his work, in eight minutes? 

Having thus exposed two vulnerabilities in the prosecution's murder-day 
chronology, Arnold attempted to expose one more. According to his chart, 
Frank left the plant for lunch at 1:00. Also according to the chart, Helen 
Kerns saw Frank waiting for a trolley at Alabama and Whitehall streets at 
1:10, while Mrs. Albert Levy saw him exit the same trolley at Georgia and 
Washington avenues at 1:20. After reminding his audience that Conley tes- 
tified the superintendent had not departed the factory until 1:30, the lawyer 
asserted, "Gentlemen, these witnesses— one a pure, sweet little bud, the 
other, it's true, a Jew, but she was telling the truth— make it as clear as holy 
writ that Conley was lying, that he is a liar fit only for the lower regions." 
That said, Arnold again pointed to his chart, focusing on an entry recording 
Rebecca Carson's glimpse of Frank returning to town on a streetcar around 
2:20. Methodically, he was endeavoring to illustrate that the state's version 
of the superintendent's activities on the afternoon of April 26 was not cred- 
ible. What, then, remained? Nothing, he insisted, but "the twin P's— preju- 



VERDICT 321 

dice and perjury." Speaking with the zeal of one whose purpose was to con- 
duct an exorcism, the lawyer pivoted away from the chart and addressing 
Dorsey directly roared: 

Away with your miserable lies about perversion, away with your mangy 
street gossip, away with your Jew-lynching witnesses, away with your third- 
degree testimony, away with your trumped-up evidence. If you are fair, you 
must stick to the facts. 

With the clock now ticking down to 6:00 p.m. and evening encroaching, 
Arnold strode to the jury-box rail and made his concluding entreaty: 

Gentlemen, never has there been such malice displayed in the prosecu- 
tion of any case. The crime was horrible. God grant its perpetrator may be 
punished, and I think that we can prove that Jim Conley is the man who 
should receive the punishment. Let us follow the law and not follow preju- 
dice. Frank's alibi is complete, and Jim Conley has been proven a liar. The 
whole case is a fabrication, a frame-up pure and simple. 

Gentlemen, write a verdict of not guilty and your consciences will be 
clear. 

Noticeably lighter than at the trial's start, features drawn and eyes dull, 
the Luther Rosser who rose Friday morning to speak the defense's last 
words bore little resemblance to his familiar antagonistic self. In a worn 
whisper that barely carried over the buzz of the electric fans, the exhausted 
lawyer opened by echoing Arnold's plea to the jurors to insulate them- 
selves from the "hostile and overzealous" spirit of Atlanta's streets. 

Rosser then took aim at the prosecution's case, beginning with the char- 
acter evidence. His first target was the allegation that the National Pencil 
factory was a hotbed of immorality. Since the plant's founding in 1908, he 
stated, it had employed countless souls, yet after weeks of "microscopic 
examination" the police had been able to locate only a few who would 
swear against it, foremost among them C Brutus Dalton. The very thought 
of this witness angered the big man, and he hoarsely rasped: 

Did you take a look at him when he went on the stand? God Almighty, 
when he writes on a human's face, doesn't always write beautifully, but 
he never fails to write legibly. If you were to meet Dalton in the dark, 
wouldn't you instinctively put your hand on your pocketbook? 

Dalton, Rosser added, was exactly the sort who would go "down that scut- 
tle hole into the basement, into the inner sanctum of filth." Not that the 



322 AND THE DEAD SHALL RISE 

lawyer believed that Dalton or, for that matter, anyone else had actually 
used the factory as a trysting place. For one thing, Rosser asserted point- 
edly, had the plant been the site of such activities, Chief Beavers's "vice 
squad" would have exposed that during its recent campaign against prosti- 
tution. For another, had even a whiff of wrongdoing reached the ears of the 
citizens whose children composed the bulk of the company's workforce, 
they would have protested so vociferously that the business "would have 
been wrecked on the rocks of bankruptcy." 

Rosser next challenged Frank Hooper's contention that the upstanding 
Atlantans who'd attested to Frank's rectitude were in no position to know 
his true nature. Gesturing to the superintendent, the lawyer declared: 

Maybe there are such things as Dr. Jekylls and Mr. Hydes. My friend 
Hooper may know more about that than I do. But do you judge men by the 
exceptions? No, you judge them by the majority rule. When the good and 
decent men and women of his neighborhood come to the stand and say his 
character is good, you believe them. 

Finally, Rosser proclaimed that the many insinuations notwithstanding, 
Dorsey had failed to prove any history of undue familiarity between Frank 
and Mary Phagan. Regarding Ruth Robinson's claim that she'd heard the 
superintendent call little Mary by name, the lawyer asserted that it meant 
nothing. As to Willie Turner's profession that he'd observed the girl backing 
away from Frank in fright, he sadly shook his head, remarking, "I'm sorry 
for that boy. Think of the claws with which these detectives dragged his 
statement out of him. Picture the way they treated Minola McKnight, then 
think of him." Which left only Dewey Hewell's charge that on several occa- 
sions, she'd seen the superintendent place his hands on Mary's shoulders. To 
this, the lawyer ticked off the names of the witnesses— among them the 
state's Grace Hicks— who had sworn that the superintendent had not been 
acquainted with the victim. 

With that, Rosser attacked the state's circumstantial evidence case, 
beginning with the charge that Frank had lured Mary Phagan to his office 
on Saturday, April 26. The facts, he contended, just didn't support such a 
conclusion. "How did Frank know Mary wasn't going to come on Monday 
or Tuesday?" demanded the lawyer. "And how did he know no one else 
would be in his office when she got there? He's a smart man, but he's not a 
seer." 

The allegations of premeditation on Frank's part thereby covered, 
Rosser assailed the charges of suspicious behavior in the murder's after- 
math. Referring to the superintendent's failure to answer the telephone 
when the police initially tried to notify him of the crime, he declared, "Gen- 



VERDICT 323 

tlemen, when Frank didn't hear the telephone ringing that morning, it was a 
sign of peace of mind and good conscience." Regarding Frank's reaction to 
the sight of Mary Phagan's body at the morgue, Rosser asked, "Is there any- 
one within the sound of my voice who would not have been nervous if they 
had seen that little girl cut off in the beginning of her young life lying there 
disfigured— a beautiful flower smeared in the mud, crushed in the cinders?" 
The lawyer was most forceful, however, on a matter of which he had first- 
hand knowledge— his hiring by Frank the Monday following the murder. 
"Let's examine what happened," he urged. "When they took him to the sta- 
tion house, he was under arrest— John Black's testimony proved as much." 
The superintendent, unaware of the police force's checkered past, "failed to 
recognize his dilemma," yet others understood, and it was through their 
efforts that Rosser was engaged. Facing the jurors, the lawyer asserted: 

Sig Montag, who has been here a long time, knew this old police crowd. 
He knew what danger there was to Frank. So he called up Herbert Haas. 
Haas didn't want to go. His wife was expecting. That's why Haas called 
[me]. And I went down there. They weren't happy to see me. But I had a 
right to be there, and Frank had a right to have me there. Dorsey tells you 
this is an indication of guilt on Frank's part. Gentlemen, when the solicitor 
reaches the age in years that I have, he'll regret it. 

Spent though he obviously was, as Friday's midday recess approached, 
Rosser, cognizant that the defense's hour upon the stage was nearly done, 
summoned the extra ration of strength necessary to launch a vigorous 
assault on the remaining elements of the state's case. Pacing before the jury, 
sweat pouring down his neck and into his shirt until the thin alpaca sport 
jacket he'd chosen for this pivotal occasion stuck in patches to his shoulders, 
he started by disputing Dorsey's claim that Frank had hired the Pinkerton 
Detective Agency to shield himself. Not only was this not so, but in truth, by 
engaging the outfit, the superintendent had brought the wolf to his door. 
Declared the lawyer: 

Gentlemen, take a look at this spectacle if you can. 

Here is a Jewish boy from the North. He is unacquainted with the 
South. He came here alone and without friends, and he stood alone. This 
murder happened at his place of business. He told the Pinkertons to find 
the man, trusting to them entirely, no matter where what they found might 
strike. He is defenseless and helpless. He knows his innocence and is will- 
ing to find the murderer. 

Yet they try to place the murder on him. God, all merciful and all pow- 
erful, look upon a scene like this. 



324 AND THE DEAD SHALL RISE 

Rosser then took issue with Dorsey's charge that in an effort to implicate 
Newt Lee as the killer, Frank had altered the night watchman's time slip 
from the evening of the crime and had planted the bloody shirt at his home. 
Regarding the time slip, the lawyer declared that the superintendent was 
not the only factory official who'd initially stated Lee had punched it cor- 
rectly; N. V. Darley had been likewise mistaken. As for the shirt, while he 
didn't say so outright, Rosser intimated that it had been John Black— not 
Frank— who'd soaked the garment in crimson and secreted it in the barrel 
the night watchman used as a bureau. He'd done so, he implied, because he 
was the one who'd hoped to pin the murder on Lee; failing that, he'd 
decided to use the shirt against the superintendent. In the end, though, 
Frank's lead counsel not surprisingly reserved his harshest salvos for the 
state's star witness. 

Despite its many parts, Rosser's concluding attack on Jim Conley, which 
would carry over into the early afternoon, was meant to convey one tran- 
scendent point. To wit: Everything about the Negro that had mesmerized 
the jurors, whether it was his appearance or, most important, his testimony, 
was a fabulous, self-protecting invention polished to a high gloss by Dorsey 
and his minions. "Who is Conley?" Rosser asked by way of introducing 
his thesis. "Who did he used to be? And was he like his old self when you 
saw him?" After letting these questions hang briefly in the air, the lawyer 
bluntly answered: 

Conley is a plain, beastly, drunken, filthy, lying nigger with a spreading 
nose through which probably tons of cocaine have been sniffed. But you 
weren't allowed to see him as he is. 

That said, Rosser turned a furious gaze upon the occupants of the prose- 
cution's table. "Think of what they did," he began, whereupon without call- 
ing William Smith by name, he enumerated the various personal services 
Conley's lawyer had provided his client before the state placed him on the 
stand. Proclaimed the big man: 

They got a dirty, black negro and in order to give impetus to his testi- 
mony they had a barber cut his hair and shave him, and they gave him a 
bath. They took his rags from his back, and he came in here like a slicked 
onion. They tried to make him look like a respectable negro. 

Conley's account of the crime, argued Rosser, had been similarly buffed. 
While he, like Arnold, believed that Jim's initial statement had been the 
fruit of his own fertile mind ("Every Southern man knows that negroes can 
make up gruesome stories"), he maintained that "the finest faculty in the 



VERDICT 325 

South" had assisted in the creation of what followed. Again indicating the 
prosecution team, the lawyer proclaimed: 

There's Professor Starnes, who holds the chair in theology. And Profes- 
sor Black, he of the third degree. And there, in charge of them all, is Dean 
Lanford. Dean, I greet you. 

As Rosser, warming to his satire, enthusiastically told it, the detectives 
charged with refining Conley's tale at first "put him in high school." There, 
they worked out the worst rough spots. "Here's the way they would do it," 
he asserted. "Professor Scott would say, 'Now stand up, James and recite. 
Why James, that couldn't be right. It couldn't have been done on Friday.' 
'That's right, boss. It was Saturday.' 'That's better James. Now repeat.' And 
so they went on." After several weeks of instruction, the lawyer added, 
Conley graduated to the university, where he met "Professor Dorsey" and 
took courses in such subjects as sexual perversion. It was thanks to the 
advanced tutoring that the account Jim ultimately gave on the stand con- 
tained so many new details. 

What the jury made of Rosser's spirited tribute to Conley's station house 
alma mater cannot be known, but amused or not, the lampoon raised 
a troubling question: If Jim's testimony was so obviously a fabrication, 
why hadn't Frank's lead counsel exposed it as such during his cross- 
examination? Facing the men who constituted his only real audience, the 
lawyer confronted the matter head-on: 

My friend Hooper said that I didn't break the negro down. And its true, 
he stuck to his story word for word— like an actor. You know, you can take 
an actor and let him memorize his lines, and if you wake him in the middle 
of the night, he can pick right up in his speech. But if you ask him about 
something else, he's lost. That's the way it was with Conley. Every time he 
got away from the main story, he either admitted that he had lied or he 
said, "I disremember." Gentlemen, there is no better sign that a man has 
memorized his story and that he is lying than those words. You can look 
through the record of his testimony and find page after page where he said, 
"I disremember." In the law books, those words stand as the badge and 
sign of perjury, and they brand Conley as what he is— a trained parrot. 

With that, Rosser was essentially finished. He spoke a few disparaging 
words about the state's medical evidence; he reiterated some inconsisten- 
cies in Dorsey's murder-day time line. But in the end, as one of his final 
comments to the jury made plain, he framed the decision as a racial one. 
Declared the lawyer: 



326 AND THE DEAD SHALL RISE 

If you, as white men, should believe Jim Conley, it will be a shame on 
this great city and on this great state and will be until the end of time. 

Whether Hugh Dorsey's decision to begin his closing argument by por- 
traying the state as the victim of a brutalizing defense team resulted from 
genuinely bruised feelings or shrewd calculation, he could not have chosen 
a better gambit. No sooner had Rosser returned to his seat than the solici- 
tor asserted that he and Frank Hooper had not only been outnumbered by 
Frank's counsel but that they had been maligned and mistreated by them as 
well. Speaking from behind the prosecution table, he declared: 

The gentlemen have abused me. They have abused the detectives. They 
have heaped calumny on us to such an extent that that good lady, the 
mother of this defendant, was so wrought up that she arose and in this 
presence denounced me as a dog. 

And so there it was: the embattled state's attorney versus the blue- 
stockinged barristers. The humble people of Atlanta versus the wealthy 
outsiders. 

The gauntlet thus thrown down, Dorsey promptly countered the de- 
fense's eleventh-hour allegation that the prosecution had been motivated 
by discriminatory leanings. " 'Prejudice and perjury,' says Mr. Arnold," 
remarked the solicitor, repeating his counterpart's charge. Then, looking up 
at the jurors, he incredulously inquired: 

Gentlemen, do you think that I, or that these detectives, are actuated by 
prejudice? Would we as sworn officers of the law have sought to hang Leo 
Frank on account of his race and religion and passed up Jim Conley, a 
negro? Prejudice? 

These questions all but obliterated the defense's accusation. And if they did 
not, there was something else. According to the solicitor's narrow but indis- 
putably accurate reading of the record, it was Frank's lawyers who injected 
the issue of religious bias into the proceedings. "Not a word emanated from 
this side," he asserted. "We didn't feel it. We would despise ourselves if we 
had. But ah, I have never seen any two men manifest more delight or exal- 
tation than Messrs. Rosser and Arnold when they seized upon George 
Kendley," the witness who'd purportedly stated that the superintendent 
should hang because of his Jewishness. Though he stopped short of saying 
so, the solicitor couldn't have made his point clearer— the cry of anti- 
Semitism was a desperate ploy to salvage a losing case. 



VERDICT 327 

With that, Dorsey paid homage to a pantheon of Jewish statesmen and 
business leaders. "I honor the race that has produced a Disraeli, the greatest 
Prime Minister that England has ever produced," he began, then doffed his 
hat to Confederate secretary of state Judah P. Benjamin and a number of 
local sons of David, among them the lawyer Henry Alexander, his University 
of Georgia roommate. Yet lest anyone think he was endorsing the defense's 
claim that Jews did not commit violent crimes, the solicitor then introduced 
a rogue's gallery of Hebrew malefactors— Abe Hummel, Herman Rosen- 
thal, Abe Reuf— all culled from recent front pages. "This great people," he 
insisted, "rise to heights sublime, but they sink to the depths of degredation, 
too, and they are amenable to the same laws as you or I and the black race." 

Dorsey then addressed what he contended was the only material that 
should have any relevance— the evidence proving that Frank had mur- 
dered Mary Phagan. And he started with what he termed "this character 
proposition." First, he reiterated his co-counsel's claim that the Atlanta 
Jews who'd attested to the superintendent's outstanding moral fiber had 
never seen his dark side. "Dr. Marx, Dr. Sonn, all these other people who, as 
Mr. Hooper said, run with the Dr. Jekyll of the Hebrew Orphans' Home, 
don't know the Mr. Hyde of the factory." That said, he vouched for the cred- 
ibility of the former employees who'd testified to Frank's lasciviousness, 
declaring that Rosser and Arnold's dismissal of them as liars was, in fact, 
evidence of their truthfulness, then averring that even if he and the detec- 
tives were as corrupt as the defense maintained, they could not have com- 
pelled the girls to swear falsely. "Do you think that we could go and get 
nineteen or twenty of them and through prejudice or passion get them to 
come up here and say that the man's character is bad and it not be the 
truth?" In the end, however, the solicitor directed his sharpest comments at 
his opposing numbers for their failure to cross-examine these young 
women. After lifting a thick legal tome from the table in front of him, he 
looked up at his audience, then demanded: 

Now gentlemen, put yourself in Frank's place. If you are a man of good 
character, and twenty people come in here and state that you are of bad 
character, is it possible, I'll ask you in the name of common sense, that 
you would permit your counsel to sit mute? You wouldn't do it, would 
you? If a man says that I am a person of bad character and it's a lie, I want 
to nail the lie, to show that he knows nothing about it. This book says it's 
allowable to cross-examine a witness, to see and find out what he knows, 
who told him these things. Yet these able counsel did not do so, and I'm 
here to tell you that this thing of itself is pregnant, pregnant, pregnant 
with significance. 



328 AND THE DEAD SHALL RISE 

Predictably, there was much more that Dorsey wanted to say regarding 
the issue of Frank's character, but with late afternoon now approaching, he 
had time to address just one last point— the superintendent's alleged pen- 
chant for bursting in unannounced on unclothed female employees. Resort- 
ing, as was his style, to yet another rhetorical question, he turned to Frank, 
then back to the jury, and inquired: 

What business did this man have going into those dressing rooms? You 
tell me that to go up there, shove open the door and walk in was part of his 
duty when he had foreladies to do it? You tell me he did this to stop the 
girls from flirting? 

After citing the many witnesses— among them the defense's own Irene 
Jackson— who'd attested to the superintendent's intrusions, the solicitor 
gathered his notes and Judge Roan brought down the gavel. 

Not that the day's events were over. Rather than disperse as they'd done 
following previous sessions, the trial's 250 spectators, at the request of 
William Smith, lingered on the sidewalks in front of the courthouse. Sup- 
per, shows, dates— all could wait. And did, until 6 p.m., when Hugh Dorsey 
appeared on the steps. At which point, the multitude— on Smith's cue— 
burst into applause. 



In anticipation of Saturday's court session, a crowd began forming in front of 
the old city hall at 5:45, and by 9:00, when the doors swung open, it numbered 
more than 1,000. Within minutes, the allotted seats were taken. Though one 
reporter maintained that "absolute decorum" prevailed, another sensed an 
"unspoken fear of trouble" in the air. Either way, observers concurred that 
the attendees were almost to a soul sympathetic to the state. They had come 
to hear the case for conviction put over. 

Picking up where he'd left off Friday, Hugh Dorsey rounded out his 
remarks on the character issue by declaring that even if Leo Frank had 
been a pillar of rectitude prior to Mary Phagan's murder, it "would amount 
to nothing." The solicitor then cited a number of mostly Jewish personages 
who despite high status had committed terrible misdeeds. Think of the Old 
Testament's David, he urged, "a great character until he put Uriah in the 
forefront of battle in order that Uriah might be killed and David take his 
wife." Or consider Judas Iscariot, "a good character and one of the Twelve," 
until he "took the thirty pieces of silver and betrayed our Lord, Jesus 
Christ." And don't forget Benedict Arnold, a hero of the Revolution who 
deceived the nation and whose name became "a synonym for infamy." That 
Dorsey, his protestations of the day before notwithstanding, was attempting 



VERDICT 329 

to stir anti-Semitic sentiments there can be no doubt. And these weren't the 
only juices he hoped to stimulate. Looking over at Frank, he mentioned an 
altogether different sort of fallen angel: 

Oscar Wilde was an Irish knight, a literary man, brilliant, the author of 
works that will go down through the ages. But the Marquis of Queensberry 
discovered there was something wrong between Oscar and his son. Oscar 
Wilde was convicted, and in his old age went tottering to the grave, a con- 
fessed pervert. 

Having thus thrown several questionable punches, Dorsey moved on to 
the topic of Frank's alibi. Approaching the chart the defense had used to 
illustrate its version of how April 26 unfolded, he pointed to the entry stat- 
ing that the superintendent had left the factory for lunch at 1:00 p.m. Then, 
after instructing a bailiff to turn the display toward the wall, the solicitor 
read a copy of the statement Frank had made for Newport Lanford on the 
Monday following the crime in which he asserted that he had left the fac- 
tory at 1:10. Considering the significance Arnold had attached to the earlier 
departure time, the ten-minute discrepancy was extremely damaging, and 
Dorsey knew it, exclaiming: 

Up goes your alibi, punctured by your own statement when you didn't 
know the importance of the time element in the case. 

Not only did Frank's initial telling contradict his lawyer's, it also contra- 
dicted that of his principal corroborating witness, Helen Kerns, who'd testi- 
fied that she'd seen the superintendent standing at Alabama and Broad 
streets at 1:10 that April Saturday. Moreover, as Dorsey revealed, the Kerns 
girl's father worked for the Montag Paper Company, and though he didn't 
say so outright, he implied that Sig Montag had coerced little Helen into 
swearing falsely. 

With that, Dorsey asked the bailiff to turn the defense's chart back 
around, enabling him to discuss another entry, the one indicating Lemmie 
Quinn's appearance in the factory office at 12:20 on April 26. "This is a 
fraud," he boomed, reminding the jurors that at first, "Frank had a mighty 
hard time remembering Quinn was there," not mentioning the fact until 
after he'd conferred with counsel. The reason for the superintendent's reti- 
cence, he added, could be found in Conley's testimony that Quinn had 
come and gone before Mary Phagan arrived, making his visit irrelevant. 
Concluded the solicitor: Frank's lawyers had altered the true sequence of 
events, and loyal Lemmie had acquiesced. 

Having thereby blown two large holes in Frank's account of his murder- 



330 AND THE DEAD SHALL RISE 

day itinerary, Dorsey lambasted the defense for accusing the state of sub- 
orning perjury. To the contrary, he proclaimed, it was Frank's witnesses 
who'd lied on the stand, and Kerns and Quinn weren't the only ones. Take 
the female worker who after vouching for the superintendent's good char- 
acter had announced that she would stake her life on his innocence. Such a 
profession practically guaranteed that the girl had dissembled, asserted the 
solicitor, adding: 

I know enough about human nature to know that this willingness to die, 
this anxiety to put her neck in a noose that ought to go around Leo Frank 
was born of something more than just platonic friendship. Whenever you 
see a woman willing to lie down and die for a man not related to her, who 
occupies the relation towards her of an employer, you may know that there 
must be a passion beyond that which ought to obtain between a married 
man and a single woman. 

The morning now half gone, Dorsey walked to the edge of the jury box 
and unleashed a new and entirely unexpected attack. His weapon— the let- 
ter Frank had written to his uncle Moses on April 26, a document that had 
gone into the record, over the state's objection, as proof that the superin- 
tendent had spent the afternoon of the murder innocently. 

"Listen to this," Dorsey began, then read the letter aloud, focusing ini- 
tially on the line "It's too short a time since you left for anything startling to 
have developed down here." After pausing to let the words sink in, the 
solicitor looked up at the jurors and exclaimed: 

Too short! Too short! Startling! Tell me honest men, fair men, coura- 
geous men, true Georgians seeking to do your duty, that that phrase 
penned by that man to his uncle on Saturday afternoon didn't come from 
a conscience that was its own accuser. Too short a time— the line shows 
that the dastardly deed was done in an incredibly short time. Nothing 
startling— I tell you that letter shows on its face that something startling 
had happened, and that there was something new in the factory. 

Having exposed what he saw as an unconscious expression of guilt on 
Frank's part, Dorsey honed in on the passage where the superintendent 
described "the thin gray line of veterans" who'd braved Confederate Memo- 
rial Day's chilly weather. Here, analysis gave way to vituperation: 

I tell you that rich uncle didn't care a flip of his finger about the thin gray 
line of veterans. All he cared about was how much money had been gotten 
in by the pencil factory. 



VERDICT 331 

Though Moses Frank, a Confederate veteran himself, likely had relished 
news of the Memorial Day observances, Dorsey was again trying to kindle 
damaging associations. He was also laying the foundation for an outrageous 
interpretive leap, one whereby the letter, whose recipient was at the time in 
New York, would lend credence to Conley's claim that in the crime's after- 
math, the superintendent had looked to the ceiling and exclaimed: "Why 
should I hang? I have wealthy people in Brooklyn." Roared the solicitor: 

Didn't have wealthy people in Brooklyn, eh? This uncle of his was 
mighty near Brooklyn. His people lived in Brooklyn, and that's one thing 
sure and certain, and old Jim never would have known it except Leo M. 
Frank had told him, and they had $20,000 in cool cash out at interest. 

Ugly as Dorsey's concluding insinuations had been, they did not signal a 
full-blown descent into demagoguery. He now exhibited what appeared to 
be genuine humility in the face of a grave responsibility, telling the jury, "I 
have a difficult task, and I wish I didn't have to do it." Moreover, his treat- 
ment of the next item on his agenda would be calm and based on a seem- 
ingly superior understanding of the evidence. 

Dorsey opened his discussion of the murder notes— a topic Frank's 
lawyers had inexplicably given short shrift— by echoing Frank Hooper's 
assertion that such communiques were simply not typical of Negroes. But 
more than just dispel the theory that Conley had composed the notes, the 
solicitor intended to prove that they were the original expressions of the 
superintendent. He believed that they actually revealed Frank as their 
author and hence the killer. 

"This letter I hold in my hands," Dorsey began, referring to the note 
scrawled on the yellow National Pencil Company order blank, "says, 'the 
negro did it.' " After letting that simple phrase reverberate for a moment, 
the solicitor grabbed several pages of trial transcript containing portions of 
Conley's testimony, then declared: "Old Jim here, every time he opened his 
mouth, says, T done it.' " As illustration, Dorsey then read a few examples: 
" T locked the door like he done told me.' 'He done just like this.' T told Mr. 
Frank the girl was done dead.' " The conclusion was clear— had Conley 
composed the note in question, he would have written "the negro done it" 
instead of the grammatically correct "the negro did it." As the solicitor 
bluntly asserted: "It's the difference between ignorance and education." 

Dorsey then moved on to the second murder note (the one jotted on a 
piece of lined white paper), paying particular attention to the phrase: "that 
negro did by his slef." Frank had inserted this line, the solicitor averred, to 
ward off any suspicion that two men— he and Jim— had been involved in 
the crime; Conley would not have needed to draw such a distinction. Flip- 



33 2 AND THE DEAD SHALL RISE 

ping back to the first note, Dorsey cited another phrase he regarded as a 
dead giveaway. Looking at the superintendent, he said: 

You make this poor girl say, "I went to make water." You tell me Conley 
would have written that when there was no place for her there by the scut- 
tle hole? Where did she go to make water? Right back there in the same 
direction she would have gone to see about the metal. 

Here, Dorsey sought to acquaint the jury with two related points. First, 
he flatly announced that pads that contained company order blanks could 
be found only where Conley swore the notes were written— the factory 
office. Then he insisted that by not speaking up regarding the Negro's abil- 
ity to write when detectives had initially shown him the notes, Frank had 
been attempting to shield himself and his accomplice. These charges pro- 
vided the solicitor with a perfect jumping-off place for his last words on the 
topic: 

I tell you, gentlemen, that a smarter man than Starnes, a smarter man 
than Campbell, a smarter man than Black— in the person of Leo M. 
Frank— felt compelled to write these letters, which he thought would 
exculpate him, but which instead incriminate and damn him. This man 
here, by these notes purporting to have been written by little Mary Phagan, 
by the verbiage and the language and the context, in trying to fix the crime 
on another, as sure as you are sitting in the jury box, has indelibly fastened 
it on himself. 

Dorsey next began hammering home one of his argument's central 
themes, namely, that Frank's April 26 encounter with Mary Phagan was the 
result of weeks, if not months, of plotting. Gesturing to the accused, the 
solicitor asserted, "This man had been expecting for some time to cause this 
little girl to yield to his blandishments and deflower her." As evidence, 
Dorsey cited the testimony of "country boy" Willie Tiirner, who "as far back 
as March" had witnessed Frank trying to "force his attentions" on Mary. 
Then there was the testimony of Dewey Hewell, "from the Home of the 
Good Shepherd," who'd seen the superintendent "place his hands" on the 
poor thing's shoulders. And finally there was James M. Gantt, who swore 
that the superintendent had asked about the girl and whose firing removed 
an obstacle to the plan. 

The opportunity Frank had long coveted, Dorsey insisted, at last pre- 
sented itself on Friday, April 25, when Helen Ferguson asked for Mary Pha- 
gan's pay envelope. The superintendent rejected the request knowing that 
his action would result in the appearance of the object of his desire the next 



VERDICT 333 

day. It was at this point, the solicitor added, that Frank sought out Conley 
and engaged him to perform the service he'd frequently performed in the 
past. 

"Ah, gentlemen, then Saturday comes, Saturday comes," Dorsey thrill- 
ingly intoned. Following a sketch of Frank's alleged activities during the 
morning hours, the solicitor asserted that Mary Phagan reached the factory 
at 12:05 and that the superintendent escorted her to the rear of the second 
floor "to see whether the metal had come." That said, Dorsey turned toward 
the accused and with the full force of his being leveled his initial accusation: 

You assaulted her, and she resisted. She wouldn't yield. You struck her 
and you ravished her and she was unconscious. 

At this, the victim's mother screamed, then buried her head in the arms of 
little Mary's sister Ollie, who was today also seated at the prosecution table. 
For the solicitor, there could have been no better backdrop, and he vigor- 
ously pressed ahead, demanding of Frank's lawyers: 

You tell me she wasn't ravished? I ask you to look at the blood— you 
tell me that little child wasn't ravished? I ask you to look at the drawers, 
that were torn. I ask you to look at the blood on the drawers. I ask you to 
look at the thing that held up the stockings. Oh, no, there was no spermata- 
zoan and there was no semen, that's true. But as sure as you are born, that 
man is not like other men. He saw this girl. He coveted her. Others without 
her stamina and her character had yielded to his lust. But she denied him, 
and when she did, not being like other men, he struck her. He gagged her. 

By now Rae and Lucille Frank were also sobbing, but Dorsey did not halt, 
turning back to the superintendent and leveling his ultimate accusation: 

You gagged her, and then quickly you tipped up to the front, where you 
knew there was a cord, and you got the cord and in order to save your rep- 
utation which you had among the members of the B'nai Brith, in order to 
save, not your character because you never had it, but in order to save the 
reputation with the Haases and the Montags and the members of Dr. 
Marx's church and your kinfolks in Brooklyn, rich and poor, and in Athens, 
then it was that you got the cord and fixed the little girl whom you'd 
assaulted, who wouldn't yield to your proposals, to save your reputation, 
because dead people tell no tales. 

Having thus not only charged Frank with Mary Phagan's murder but found 
a new way to make his Jewishness appear to be a factor, Dorsey capped this 



334 AND THE DEAD SHALL RISE 

portion of his address with a last thunderbolt. In a line that managed to 
serve as an apologia for one of his least savory witnesses and invoke the 
specter of extralegal violence, he asserted that in killing little Mary, the 
superintendent was motivated by a final consideration— the knowledge 
that had he let her live, "ten thousand men like Kendley would have sprung 
up in this town and would have stormed the jail." Such things "oughtn't to 
be," said the solicitor, but his qualification did not negate the remark. 

As he'd done before, Dorsey now throttled back, quietly attending to 
some outstanding business. First, he contested the defense's claim that the 
blood and hair located on the factory's second floor the Monday after the 
murder had been planted. Not so, he asserted, reminding his audience that 
at the time R. P. Barrett made the finds, no reward had been posted. Next, 
he reiterated the contention that the only dubious items entered into evi- 
dence had been planted by the defense, ticking off a list that started with 
the crimson-soaked shirt planted at Newt Lee's house and included the 
twine and club located in the factory lobby in mid-May when Rosser "real- 
ized something had to be forthcoming to bolster up the charge that Conley 
did it." 

And so it would continue until 1:30, when Dorsey— to the surprise of a 
gallery that fully expected him to finish his presentation by day's end— 
pulled a handkerchief from his pocket, wiped the sweat from his face and 
simply stopped. "I am mighty tired, your honor," he said by way of explana- 
tion. "I hardly feel that I can go on." 

At that, Reuben Arnold rose and joined Dorsey at the bench, where fol- 
lowing a ten-minute conference, Judge Roan turned to the jurors and 
announced: "Gentlemen, the solicitor has more to say but cannot go further 
as he's exhausted. As much as I hate to do it, I think I have to adjourn until 
9:00 Monday." 

The next morning, Atlanta's papers repeated the court's rationale for 
extending the trial another week. "Only the limitations of human endur- 
ance, taxed to its utmost, kept the Frank case from going to the jury Satur- 
day afternoon," declared the Constitution. But in fact, the truth was more 
complicated, reflecting an awareness by all involved of the increasingly 
volatile atmosphere in the city. As the Augusta Chronicle, one of the many 
out-of-town sheets that had staffed the proceedings as the denouement 
approached, reported: 

The real reason the trial of Leo Frank was abruptly adjourned Saturday 
was a fear of the same element which brought about the great Atlanta riot 
[of 1906] —the lower element, the people of the back streets and the alleys, 
the near-beer saloons and the pool rooms. The Saturday night crowd in 



VERDICT 335 

Atlanta, beer drinking, blind-tiger frequenting, is not an assemblage loving 
law and order. A verdict that displeased these sansculottes of Marietta 
Street might well result in trouble. 

According to the Chronicle, Judge Roan and the lawyers from both sides, in 
consultation with Governor John Slaton (who was said to have placed the 
state militia on call), had agreed not to let the case go to the jury over the 
weekend. 

Thus Sunday passed with Atlanta in limbo, and nowhere was the sus- 
pense felt more intensely than in Leo Frank's cell at the Tower. Throughout 
the day, friends poured in, and to all the prisoner expressed confidence 
regarding the outcome. To himself, however, Frank couldn't have been sure. 
The state's evidence was persuasive, and Dorsey's speech had impressed 
even his detractors. With uncharacteristic admiration, the Georgian termed 
it "a white hot philippic, the greatest ever heard in a criminal court in the 
South." 



That a vocal majority of Atlantans was openly pulling for Leo Frank's con- 
viction could not have been plainer. The enormous crowd gathered in front 
of the old city hall Monday morning applauded Hugh Dorsey as he entered 
the building. Anxious to make certain that this critical last session was not 
itself marred by such demonstrations, Judge Roan wasted no time warning 
the men and women lucky enough to gain admission to be careful, lest their 
behavior "invalidate all the work that has been done in the past four 
weeks." With that, a hush fell over the gallery, and the solicitor rose to his 
feet. 

Dorsey began his concluding push by offering a discourse on circum- 
stantial evidence. Though he conceded that "this circumstance or that cir- 
cumstance" might not be strong enough to convict Frank, he insisted that 
when taken together, the pieces that had been placed before the jury con- 
stituted "such a cable and such a strand that it was not only impossible to 
conceive of a reasonable doubt but of any doubt at all." The solicitor then 
reiterated the most damning particulars. 

There was Lucille's failure to visit Leo during his first days of incar- 
ceration. Though Reuben Arnold objected to Dorsey's "unfair and outra- 
geous" attempt to imply that the superintendent's wife had stayed away 
because she questioned her husband's innocence, Roan— after reminding 
the defense lawyer that Frank had himself mentioned the matter in his 
statement— ruled that the subject was fair game. Thus the solicitor said: "I 
tell you, gentlemen, that there never lived a woman, conscious of the recti- 



336 AND THE DEAD SHALL RISE 

tude of her husband, who wouldn't have gone to him through snapshooters, 
reporters and everything else. And you know it." 

There was Frank's refusal to meet with Conley in late May when Chiefs 
Beavers and Lanford brought the Negro to his cell. Proclaimed Dorsey: 

Gentlemen of the jury— and if you have got enough sense to get out of 
a shower of rain you know it's true— never in the history of the Anglo- 
Saxon race, never in the history of the African race in America, did an 
ignorant, filthy negro accuse a white man of a crime and that man decline 
to face him. 

Then there was the jailhouse get-together that did take place— the one 
between Frank and Newt Lee. Dorsey simply did not buy the superinten- 
dent's account of the session, and turning to him, he inquired: 

Did you make an earnest, honest conscientious effort, as an innocent 
employer would have with his employee, to get at the truth? No. According 
to Lee, you hung your head and quizzed him not, but predicted that both 
Lee and you would go to hell if Lee continued to tell the story, which he 
tells even to this day. 

Having raised several of the circumstances that in the wake of Frank's 
arrest had whetted investigators' suspicions, Dorsey next focused on what 
he regarded as a group of earlier incriminating actions. Many of these— the 
superintendent's abrupt shift of Lee's April 26 starting time from four to six 
p.m, his refusal to let the night watchman spend the intervening hours in the 
factory, his attempt later that afternoon to keep James M. Gantt from enter- 
ing the building to search for his shoes, his seven p.m. phone call from home 
to check on Lee— were familiar. Others, however, had not been previously 
adduced. For instance, Dorsey read much into the fact that Lucille rather 
than Leo answered the door when the police came to their house following 
the discovery of Mary Phagan's body, seeing it as a sign of Frank's evasive- 
ness. Similarly, he felt that the superintendent's insistence on having N. V. 
Darley on hand for the subsequent tour of the plant indicated that he'd 
needed someone "to sustain his nerves." Finally, there was Frank's late- 
Sunday visit to the morgue; in the solicitor's view, it sprang from an atavis- 
tic impulse. "Like a dog to his vomit, a sow to his wallow, Frank went to view 
the remains of this poor innocent little girl." 

At midmorning, Dorsey changed course. His remarks on the medical evi- 
dence were brief but pointed. First, he praised the humble Southern food 
that had served as the source of the state's findings as to the hour of Mary 
Phagan's demise: 



VERDICT 337 

I tell you, gentlemen, that there is no better, no more wholesome meal 
than cabbage, and when the stomach is normal and all right, there is noth- 
ing that is more easily digested. And I tell you that cabbage, cornbread, and 
buttermilk is good enough for any man. 

Then he saluted Dr. Roy Harris on the same grounds, terming him "a Geor- 
gia son who holds the highest honor that can be given to a man in his pro- 
fession in the state." That said, Dorsey blasted the defense's outside experts, 
dismissing Dr. Leroy Childs as "the man from Michigan" and Dr. George 
Bachman as "the man from Alsace-Lorraine." All of it was prefatory to the 
main point: 

This cabbage proposition fastens and fixes and nails down with the 
accuracy which only a scientific fact can do, that Mary Phagan met her 
death between the time she entered the office of the superintendent and 
the time Mrs. White came up the stairs at 12:35 to see her husband. 

By this juncture, Dorsey had been speaking for the better part of three 
days. He had attacked the conduct of Frank's lawyers even as he had de- 
fended his own. He had revisited familiar pieces of evidence, interpreted 
enigmatic clues and illuminated previously ignored ones. He had both de- 
nounced Frank's character and emphasized his Jewishness and wealth. 
Through it all, however, he had barely mentioned the figure around whom 
everything revolved and about whom his audience longed to hear more. 
Which was why when he brought up his star witness, he did so in the confi- 
dent tone of a general who'd held his crack troops in reserve until the end: 

So far, not a word about Conley. Not a word. Leave Conley out, you've 
got a course of conduct that shows that Frank is guilty. Now, let's discuss 
Conley. 

Yet rather than plunge into Conley's story, Dorsey began by praising the 
white man who'd corroborated its most salacious elements. C. Brutus Dal- 
ton, asserted the solicitor, enjoyed "the confidence of the people among 
whom he lives," and his testimony as to the chores the Negro had previously 
performed for Frank was absolutely credible. 

Next, Dorsey rebutted Luther Rosser's claim that William Smith had 
gotten Conley shaved and showered and outfitted in a new wardrobe in a 
cynical attempt to keep the jurors from seeing him as the disreputable 
Negro he truly was. Not so, maintained the solicitor. Smith had been moti- 
vated by no other force than "the charity in his heart," and for this he 
deserved "not condemnation but thanks." 



338 AND THE DEAD SHALL RISE 

Dorsey appeared ready to launch his peroration, but once more he 
digressed, offering a rationale for Conley's transfer from the laxly guarded 
Tower to the police lockup. Though the topic was germane, the solicitor was 
obviously stalling. 

From this point on, however, there would be no more pauses. As the 
clock ticked toward noon, Dorsey elucidated the evidence and testimony 
that as he phrased it again and again sustained Jim Conley: 

The defense's failure to cross-examine our character witnesses sustains 
Jim Conley. 

Frank's relations with Miss Rebecca Carson, who is shown to have gone 
in the ladies' dressing room with him, sustains Jim Conley. 

Your own witness, Miss Jackson, who says that this libertine and rake 
came in when these girls were in there reclining and lounging after they 
had finished their work and tells of the sardonic grin that lit his counte- 
nance, sustains Jim Conley. 

Monteen Stover, as to the easy-walking shoes she wore when she went 
up into Frank's room, sustains Jim Conley. 

Monteen Stover, when she tells you that she found nobody in that 
office, sustains Jim Conley. 

The testimony of Boots Rogers, that the elevator box was unlocked, sus- 
tains Jim Conley. 

His litany completed, Dorsey turned to the jury and in the voice of a man 
who'd long been awaiting this moment vowed: 

Gentlemen, every act of that defendant proclaims him guilty. Gentle- 
men, every word of that defendant proclaims him responsible for the death 
of this little factory girl. Gentlemen, every circumstance in this case proves 
him guilty of this crime. Extraordinary? Yes, but nevertheless true, just as 
true as Mary Phagan is dead. She died a noble death, not a blot on her 
name. She died because she wouldn't yield her virtue to the demands of 
her superintendent. 

Your honor, I have done my duty. And I predict, may it please your 
honor, that under the law that you give in charge and under the honest 
opinion of the jury of the evidence produced, there can be but one verdict, 
and that is: We the jury find the defendant, Leo M. Frank, guilty! 

Whereupon the bells of the nearby Church of the Immaculate Conception 
began to toll twelve, giving the solicitor— whose earlier diversions now 
made sense— the opportunity to repeat his last word between each sue- 



VERDICT 339 

ceeding chime: "Guilty! Guilty! Guilty!" Until finally the bells sounded 
no more. 



No sooner had Dorsey returned to his seat than Reuben Arnold, after 
requesting that the jury be sent out, asked for a mistrial. The motion, which 
the lawyer had written hastily in pencil and which he now read aloud, was 
predicated on the many partisan outbursts that had occurred during the 
course of the proceedings. Starting with a mention of the applause that had 
greeted Judge Roan's decision of two weeks earlier to allow into evidence 
Conley's testimony accusing Frank of sexual perversion and ending with a 
reminder that this very morning the solicitor's arrival had been greeted 
with cheers, Arnold cited five incidents that he believed had "tended to 
coerce and intimidate" the jurors, who when they were not in court, he 
stressed, sat in a room just twenty feet away. "Your honor," declared the 
lawyer, "the behavior of the spectators throughout this trial has been dis- 
graceful." 

Predictably, Dorsey not only opposed Arnold's motion but disputed the 
facts upon which it was based, asserting that even if there had been displays 
of emotion, "it is ridiculous to say that they amounted to anything." 

At this, Arnold, after recalling to the judge that he had himself witnessed 
the gallery's conduct, asked him to "take cognizance of these facts and cer- 
tify to them." 

"Of course I heard the cheers," replied Roan, "but whether the jury was 
influenced, I don't know." 

Arnold sought permission to summon several of the deputy sheriffs 
who'd supervised the jurors over the past month, and presently R. V. 
DeVere and Charles Huber took the stand. The deputies' testimony, how- 
ever, was inconclusive. Though DeVere stated that the jurors had heard the 
applause, he maintained that they did not know which side it favored. As 
for Huber, he said that he had not learned of Friday evening's demonstra- 
tion until Saturday, a claim that even as it undermined the defense's point 
drew snickers from the audience that seemed to affirm it. "Why, your 
honor," Arnold complained. "You can't keep them quiet now." 

In the end, however, Roan overruled the defense's motion, and the jury 
was returned. The judge's charge was in most ways pro forma. He reminded 
the twelve men that the law accorded Frank the presumption of innocence. 
He defined the concept of reasonable doubt. He spoke of the differences 
between direct and circumstantial evidence. Then he discussed character 
evidence, informing the jurors that good character was no bar to conviction 
but emphasizing that "an instance of misconduct shown by the state doesn't 



340 AND THE DEAD SHALL RISE 

mean the defendant is guilty." As to Frank's statement, the judge reminded 
his audience that the superintendent had not been under oath when he 
made it. "It is with you as to how much of it you will believe or how little." 
This said, Roan told the jurors that if they found against Frank, they would 
have the option of recommending mercy. If they did not so recommend, he 
added, the court would have no choice but "to sentence the defendant to 
the extreme penalty." With that, the judge brought down his gavel, where- 
upon Lucille Frank leaned back in her chair, closed her eyes and clasped 
her throat as if about to faint. As for her husband, he appeared, as always, 
unaffected. 



The jury began its deliberations at 1:35 p.m. in a chamber two floors above 
the courtroom. After a month in the fishbowl, the space was relatively iso- 
lated, although even here, the men were not free from scrutiny. As it so hap- 
pened, the sixth story of the nearly completed courthouse offered a perfect 
vantage on the scene, and a gaggle of reporters had congregated there. Not 
that they could ascertain much from such a remove. True, they observed 
that the jurors' first act was to elect Fred Winburn, the railroad freight 
agent, foreman. And yes, they noticed that early on, the men passed around 
the bottles containing cabbage samples. But otherwise, they could do little 
but speculate as to various dispositions. 

As the jury got down to work, considerable and significant activity was 
simultaneously under way in the Thrower Building office of Leonard Roan. 
There, at the judge's suggestion, representatives of the defense and the 
state were completing an agreement whereby the presence in the court- 
room of both Frank and his lead lawyers would be waived for the reading of 
the verdict. Roan, conscious of the increasing hostility in Atlanta, believed 
that in the event of an acquittal, the superintendent and his counsel could 
well become the targets of violence. 

Shortly after this arrangement was finalized— and just an hour and forty- 
five minutes after the jurors took up the case— the reporters looking on 
from across the street flashed the news. The panel, following only two bal- 
lots, had reached a verdict. Since it would take time for some of the princi- 
pals to get back downtown, the jury remained out until 4:56 p.m. By then, a 
crowd of five thousand was packed around the court building. Though 
mounted policemen rode through the throng, there was no containing the 
restive and anticipatory air. 

For all the commotion outside, the courtroom itself was silent. The space 
had been cleared of spectators. Thus only Dorsey and Frank Hooper at one 
table, Rosser's son, Luther Jr. and his partner, Stiles Hopkins, at the other, a 
few curious lawyers and a delegation of newsmen heard the key exchange. 



VERDICT 341 

"Gentlemen, have you reached a verdict?" asked the judge. 

"We have, your honor," replied Winburn, at which point the foreman 
unfolded a sheet of paper and in a trembling voice declared: "We have 
found the defendant guilty." 

No sooner had Winburn spoken than the reporters rushed en masse to 
an adjacent room and over multiple lines installed for just this purpose 
began phoning their offices. As they barked into mouthpieces, crowd mem- 
bers clustered at the windows picked up the news and in seconds, observed 
one journalist, "the cry of guilty took winged flight from lip to lip. It trav- 
eled like the rattle of musketry. Then came a combined shout that rose to 
the sky. Hats went into the air. Women wept and shouted by turns." 

The demonstration shook the courtroom— so much so that an over- 
whelmed Dorsey ceded the task of polling the jury to Roan. "Is that your ver- 
dict?" the judge twelve times asked over the noise, and twelve times the reply 
came back, "Yes." There was no recommendation of mercy, though Roan, 
mindful of what was occurring outside, announced that he would delay sen- 
tencing. Thus it was done, and as John W. Coleman, little Mary's stepfather, 
shook hands with the jurors, the solicitor made his way toward the door. 

Standing on the old city hall steps, Dorsey blinked with astonishment. 
For blocks in every direction, the streets pulsated with cheering souls, while 
overhead, windows were crowded with women and children. Reported the 
Constitution: 

The solicitor reached no farther than the sidewalk. While mounted men 
rode like Cossacks through the human swarm, three muscular men slung 
Mr. Dorsey on their shoulders and passed him over the heads of the crowd 
across the street. 

With hat raised and tears coursing down his cheeks, the victor in Geor- 
gia's most noted criminal battle was tumbled over a shrieking throng that 
wildly proclaimed its admiration. Few will live to see another such demon- 
stration. 

After being deposited at his office, Dorsey grabbed a fistful of belongings, 
then made his way to a waiting car. To shouted requests from reporters for 
comment, he would say only, "I feel sorry for his wife and mother." With 
that, the machine pulled slowly away, the solicitor shaking hands with well- 
wishers as policemen held open a path. Up Pryor Street into the central 
business district the vehicle crept, thousands still screaming their approba- 
tion and from the skyscrapers ahead a bright fluttering of handkerchiefs. 

Across town at the Fulton County Tower, the mood was, of course, dif- 
ferent. In fact, the news so shocked a group of Leo Frank's friends— among 
them Rabbi David Marx, a young lawyer named Samuel Boorstin and Dr. 



34 2 AND THE DEAD SHALL RISE 

Benjamin Wildauer, a politically connected dentist— that they called Dr. 
Howard Rosenberg, then waited in the lobby for the thirty minutes it took 
the Franks' physician to arrive before mounting the metal steps to the 
superintendent's cell. The entourage found Leo and Lucille sitting side by 
side. After Frank rose to greet the men, it fell to Rosenberg to deliver the 
grim tidings. To which Frank incredulously responded: "My God! Even the 
jury was influenced by mob law." Lucille, however, could not mask her 
heartbreak. Noted a reporter who took in the scene: "Mrs. Frank huddled 
closer to her boyish-looking husband. There was a wild stare in her eyes. 
She threw her arms about his neck and sobbed bitterly. He stroked her 
head and pleaded with her to be brave." Following a brief interlude, Rosen- 
berg prevailed upon Lucille to let him drive her home, where her parents 
and Leo's mother were waiting. Though Lucille refused comment to the 
newsmen who met her outside, Wildauer soon appeared and issued what 
would be Frank's one official statement: "I am as innocent today as I was 
one year ago." Soon thereafter, the Seligs' Negro chauffeur arrived with the 
convicted man's supper, which he ate with relish. Then he retired. 

Many Atlantans behaved as if they hoped the day would never end. 
Long into the night, people stood on corners discussing the verdict. Others 
called friends. (Southern Bell executives announced that the volume of 
phone usage in the city Monday broke records.) And everyone, it seemed, 
bought extras. All three papers published special editions, but predictably, it 
was the Georgian that outdid itself, printing 131,208 copies, more than triple 
its pre-Hearst circulation. 



Tuesday dawned with Atlanta still besotted from Monday's events. Which 
was why Judge Roan informed just a few people regarding the time and 
place of Leo Frank's sentencing. As a consequence, when the superintend- 
ent walked into a Thrower Building courtroom at 10:20, the only individu- 
als present were Rosser and Arnold, assistant solicitor Ed Stephens and a 
handful of reporters. So secretive were the proceedings that Lucille did not 
learn of them in time to be at her husband's side, meaning that when the 
judge asked Frank if he had anything to say before hearing his fate pro- 
nounced, he could seek solace solely from within. Not that the convicted 
man appeared at a loss. Looking Roan directly in the eyes, in a clear voice, 
he declared: "I say now, as I have always said, that I am innocent. Further 
than that, my case is in the hands of my lawyers." 

With that, Roan remarked, "Mr. Frank, I have tried to see that you had a 
fair trial for the offense for which you were indicted. I have the conscious- 
ness of knowing that I have made every effort." Then, using words pre- 
scribed by law, the judge proclaimed: 



VERDICT 343 

It is ordered and adjudged by the court that on the tenth day of Octo- 
ber, 1913, the defendant, Leo M. Frank, shall be executed by the sheriff of 
Fulton County. That said defendant on that day between 10 o'clock a.m. 
and 2 o'clock p.m. shall be hanged by the neck until he shall be dead, and 
may God have mercy on his soul. 

In the wake of Frank's sentencing, Reuben Arnold submitted a motion 
to Roan announcing the defense's intention to seek a new trial, and Octo- 
ber 4 was set as the hearing date. Soon thereafter, Frank's lawyers distrib- 
uted a statement indicating how vehemently they intended to pursue the 
fight: 

The trial which has just occurred and which has resulted in Mr. Frank's 
conviction was a farce and not in any way a fair trial. 

The temper of the public mind was such that it invaded the courtroom 
and pervaded the streets and made itself manifest at every turn the jury 
made and it was just as impossible for this jury to escape the effects of the 
public feeling as if they had been turned loose and allowed to mingle with 
the people. 

It would have required a jury of stoics, a jury of Spartans, to have with- 
stood this situation. 

The defense's allegations would be difficult to prove. Even as Rosser and 
Arnold were asserting that the men who tried Frank had been influenced 
by public sentiment, the Georgian had an extra on the streets in which 
an unnamed juror maintained: "The jury heard none of the cheering for 
Dorsey outside the courtroom at any time. We heard the crowds in the 
courtroom laugh at times, and we laughed, too, but that had no effect." To 
the contrary, the anonymous panelist declared, the body based its decision 
solely on the facts. "Don't think that we had not considered the case fully," 
he said. "And don't think that there was a man amongst us that wanted to 
do what we did. Yet, day after day, the pressure grew heavier as the case was 
put before us. From a slight dread it became an oppression, then a nausea 
and at last a sickening sense that Frank was the guilty man and we were 
going to give the world that verdict." 

And so the most furiously fought legal battle in Georgia history had 
ended where it began— in discord and dispute. There was, however, one 
place in Atlanta where unanimity and harmony reigned. Boomed the Geor- 
gian's headline: 

JIM CONLEY,THE EBONY CHEVALIER OF CRIME, 
IS DARKTOWN'S OWN HERO 



344 AN D THE DEAD SHALL RISE 

In the following text, the paper's James B. Nevin portrayed a Negro com- 
munity in complete accord. After discussing the general reaction, the re- 
porter gave the last word to a shoe-shine boy with "a smattering of 
education and an ingratiating manner." Observed this representative black 
man: 

Well, boss, dem niggers down on Decatur Street, dey ain't talking of 
nothing but Jim Conley. He's the most talked about nigger anywhere, I 
guess. I hears him complimented on all sides. He done got de best of de 
smartest of 'urn. Nobody can fool er nigger like Jim. 



THIRTEEN 



Appeals in and out of Court 



o: 



n or near Labor Day, 1913, barely a week after Leo Frank's con- 
| viction, Rabbi David Marx walked into Atlanta's Terminal Station 

and boarded a train for New York. At forty-one, balding and gray- 
ing at the temples, the leader of the city's Reform congregation betrayed no 
evidence of heartache or perturbation. Judging solely by appearances, he 
was, as always, the cool and aristocratic diplomat who seemed at home in 
every part of the capital of the New South. In truth, however, the rabbi was 
distraught. He was also furious, believing that the jury's verdict against 
Frank could be explained only by a sentiment that he'd heretofore main- 
tained barely existed in Georgia: anti-Semitism. 

Marx was not alone in such feelings. Secure and accepted as members of 
Atlanta's German- Jewish elite had traditionally believed themselves to be, 
in the days since the trial ended many of them had begun to manifest a deep 
sense of unease. The initial public display of this unease occurred the night 
of Frank's conviction when even as the bulk of the city's populace still cele- 
brated, the rabbi's wife drove up to the Fulton County Tower to retrieve her 
husband and in a tearful voice was heard to tell him: "Oh, please take me 
away from Atlanta." In light of the fact that Eleanor Marx's father, Abra- 
ham Rosenfield, was one of the Temple's cofounders, her remark suggested 
a wound that went to the core of the Washington Street community. Two 
mornings hence, the Macon Telegraph, indicating again that only the out- 
of-town press was willing to call attention to the ill will the proceedings had 
unleashed, confirmed as much, reporting: 

The long case and its bitterness has hurt the city greatly in that it has 
opened a seemingly impassable chasm between the people of the Jewish 
race and the Gentiles. It has broken friendships of years, has divided the 
races, brought about bitterness deeply regretted by all factions. The friends 
who rallied to the defense of Leo Frank feel that racial prejudice has much 
to do with the verdict. They are convinced that Frank was not prosecuted 
but persecuted. 



346 AND THE DEAD SHALL RISE 

Marx was headed to New York to alert the leaders of American Jewry to 
Frank's plight, which he believed was commensurate to that of Alfred 
Dreyfus, the French military officer who, after being convicted of treason in 
1894, was shown to have been the victim of an anti-Semitic plot and, fol- 
lowing worldwide agitation, pardoned. As the rabbi, in an August 30 letter 
to a potential convert to the cause, had himself put it: 

I would like to enlist your assistance in what is without doubt an Amer- 
ican "Dreyfus" case that has just developed in Atlanta ... the evidence 
against Frank is purely prejudice and perjury. The feeling against the 
Damned Jew is so bitter that the jury was intimidated and feared for their 
lives, which undoubtedly would have been in danger had any other verdict 
been rendered. 

Marx hoped to see a number of people in the city, but two stood out. 

At fifty-five, Adolph S. Ochs, publisher of the New York Times, was not 
only the most powerful figure in American journalism, he was the profes- 
sion's most powerful Jew. (Moreover, he was a Southern Jew, reared in 
Knoxville, Tennessee, who'd founded the Chattanooga Times, of which 
he was still proprietor.) Yet even so, Ochs was loath to involve himself in 
Jewish issues. "Mr. Ochs is a non- Jewish Jew," noted his trusted editorial 
assistant Garet Garrett. "He will have nothing to do with any Jewish 
movement." The most marked instance of this reluctance had occurred dur- 
ing the Dreyfus affair, when the publisher resisted pleas to take the lead 
in championing the French officer's exoneration. More recently, he had 
rejected an invitation to join the American Jewish Committee, a group 
composed of some of the country's most influential Jews. Though Ochs was 
a sympathetic and, indeed, sentimental soul, his reasoning seemed inar- 
guable. He was determined, in Garrett's words, never to let the Times 
become "a Jewish newspaper." Securing his interest in the matter of Leo 
Frank was hardly a fait accompli. 

The other New Yorker at the top of Marx's list was Louis Marshall, pres- 
ident of the American Jewish Committee. At fifty-six, Marshall was widely 
regarded as attorney-at-large for the Jewish people. A partner in the firm of 
Guggenheimer, Untermeyer and Marshall and an expert in constitutional 
law, he had spent much of the past decade fighting anti-Semitism. In 1905, 
he'd led a successful battle to open New York's restricted Lake Placid Club 
to Jewish members. Soon thereafter, he'd conducted a victorious statewide 
campaign to outlaw discriminatory practices at hotels. And in 191 1, he'd 
spearheaded a triumphant nationwide drive to force the United States 
to abrogate an international treaty that had been used by hostile Czarist 



APPEALS IN AND OUT OF COURT 347 

authorities to keep American Jews from freely conducting business in 
Russia. What made this last accomplishment impressive was the fact that 
after President William Howard Taft resisted an initially quiet lobbying 
effort, Marshall, a Republican, enlisted the Democratic presidential aspi- 
rant Woodrow Wilson in a public campaign to force the issue. When the per- 
tinent bill came before Congress, it passed by a 300-to-i vote. 

However, Marshall, too, was reluctant to involve himself or his organiza- 
tion in most of the reported incidents of anti-Semitism that crossed his 
desk. "We are always talking too much about Jews, Jews, Jews, and we are 
making a Jewish question of almost everything that occurs," he was wont to 
say. The thing to keep in mind, he often added, was "to avoid the appear- 
ance of crying wolf." Thus when asked to initiate action against, say, a pro- 
duction of William Shakespeare's The Merchant of Venice on the grounds 
that the character of Shylock was a prejudicial stereotype, he invariably 
said no. Only truly just causes— ones rooted in incidents where Jews' rights 
and freedoms as American citizens appeared to be threatened— received 
Marshall's attention. He was also quite capable of shying away from any- 
thing having to do with Leo Frank. 

Since Ochs was at the time vacationing in Europe, Marx was shunted off 
to one of the Times's assistant editors. After presenting an overview of the 
Frank case to this underling, the rabbi asked that the paper— which had 
printed only three brief pieces on the trial— look into the topic and prepare 
a comprehensive article. The editor agreed to make some inquiries, but fol- 
lowing a call to his Atlanta stringer, he went no further. As Garet Garrett 
would write: "The correspondent . . . reported that there was a lot of anti- 
Jewish feeling against Frank, and that the worst thing for him that could 
happen would be for the Jews to rally to him, as Jews." 

Marshall's response to Marx's appeal was more encouraging, although if 
it was a call for action the rabbi wanted, he went away disappointed here as 
well. The American Jewish Committee president believed that the Frank 
case met his criteria for involvement, agreeing with Marx that the factory 
superintendent had not received a fair trial and that anti-Semitism was a 
factor. By September 5, in fact, Marshall was alerting his highly positioned 
Jewish friends to what had happened in Atlanta. Frank's conviction, he 
wrote fellow committee member Dr. Joseph L. Magnes, was a "horrible 
judicial tragedy." To Irving Lehman, scion of the great merchant-banking 
family and himself a respected lawyer, he asserted, "The case is almost a 
second Dreyfus affair." Still, Marshall believed that an all-out campaign 
would be precipitous and likely damaging to the condemned man's hopes. 
On September 9, he informed Frank's friend Milton Klein, who had written 
to second Marx's plea for support, that he preferred to work indirectly: 



348 AND THE DEAD SHALL RISE 

It would be unfortunate if anything were done . . . from the standpoint 
of the Jews. Whatever is done must be done as a matter of justice, and any 
action that is taken must emanate from non- Jewish sources. 

Exhibiting a keen understanding of the resentment Southerners would 
likely feel toward Northern intervention in general and Jewish intervention 
in particular, Marshall proposed to work behind the scenes to change Atlan- 
tans' thinking. As he wrote Lehman: 

There is only one way of dealing with this matter and that is in a quiet, 
unobtrusive manner to bring influence to bear on the Southern press [to 
create] a wholesome public opinion which will free this unfortunate young 
man from the terrible judgement which rests against him. 

It appears to have been no coincidence that in response to these cool 
reactions, either Marx or others in Leo Frank's camp chose this moment 
to solicit the assistance of a more confrontational Northern Jew. Simon 
Wolf, a prominent Washington lawyer who was both president of the capi- 
tal's chapter of the B'Nai Brith and director of Atlanta's Hebrew Orphans 
Home, was not a reticent soul. In mid-September he circulated a letter to 
the members of the Union of American Hebrew Congregations counseling 
action on Frank's behalf. By the month's end, Jewish publications from 
Minnesota to Alabama had taken up the cause. Proclaimed the September 
26 issue of Cincinnati's American Israelite: 

Frank's religion precluded a fair trial . . . The man was convicted at the 
dictates of a mob, the jury and the judge fearing for their lives. 

This development infuriated Louis Marshall. Writing on September 27 to 
Adolph Kraus, president of the national B'Nai Brith, the lawyer expressed 
his "great regret [at] such articles as that which appeared on the editorial 
page of the Israelite . . . They can do no good. They can only accentuate the 
mischief." Making the same argument he'd made to Marx, Marshall added 
that the best course was to lobby Southern newspapers to mount a home- 
grown effort for Frank. That way, the anti-Semitism that had arisen in 
Atlanta "may not only subside but may be absolutely counteracted and 
destroyed." 



As Rabbi Marx was making the rounds in New York, Leo Frank's lawyers 
in Atlanta were gearing up for the next legal battle. The first order of busi- 
ness was to prepare an amended motion for a new trial, and Luther Rosser 



APPEALS IN AND OUT OF COURT 349 

set to work. From Labor Day on, the Grant Building offices of Rosser, 
Brandon, Slaton & Phillips were a hive of activity. Plainly, the condemned 
man's counsel would argue that the many demonstrations in support of 
Hugh Dorsey during the just completed proceedings had intimidated the 
jurors. They would also contend that Judge Leonard Roan had erred in 
allowing Jim Conley's sexually explicit testimony to remain in the record. 
Yet beyond this, little was known. Rosser refused requests for interviews. 
And Reuben Arnold, having left town for a long-planned vacation, was 
unavailable for comment. 

With months, possibly years, of wrangling ahead (the defense had already 
announced that if the application for a new trial was denied, it would appeal 
to the Georgia Supreme Court), Leo Frank now knew that the Fulton 
County Tower would be his home for the foreseeable future. By early Sep- 
tember, he had undertaken the task of redecorating his six-by-eight-foot 
cell, seeing to it that the floors were polished, the walls scrubbed and two 
chairs and a table installed. Boomed the Constitution's headline: cell now 
like living room. Frank also established a physical-fitness regimen. Ris- 
ing each morning at seven, he would go to a window and breathe deeply 
while overlooking the sprawl of warehouses that surrounded the jail. Fol- 
lowing twenty minutes of exercise with Indian clubs and a set of dumbbells 
he'd received permission to keep on hand, he showered, donned a robe and 
sat down to the newspapers. At 8:50, his father-in-law arrived with break- 
fast, which usually consisted of cantaloupe, rolls and coffee. Presently, Her- 
bert Schiff or Sig Montag dropped by to discuss business matters with 
Frank, who while no longer in charge of day-to-day operations continued to 
consult on major decisions. At 1:30, dinner was served, and at 4:00 Lucille 
appeared, usually staying through supper. Most evenings, friends visited. 
But on others, Frank sat up alone studying his case, preparing a file of the 
evidence that he believed established his innocence. Despite his realization 
that the process would be lengthy, he possessed every confidence that he 
would not only win a new trial but that he would be exonerated. Noted the 
Georgian: "There is no suggestion of the dejected or broken man con- 
demned to be hanged." 

The reason for Frank's optimism became apparent on October 1 when 
his lawyers, just four days before the hearing date set by Judge Roan, re- 
leased the amended motion. The document cited 115 reasons why the fac- 
tory superintendent should be granted a new trial. As the defense saw it, the 
court never should have admitted Bert Green's chart of the pencil plant, 
with its colored lines indicating the paths the state maintained Frank had 
traveled while committing the crime. Nor should it have countenanced Dr. 
Henry F. Harris's "opinions" as to the hour of Mary Phagan's death. Then 
there were the questionable allegations of lascivious conduct against the 



35° AND THE DEAD SHALL RISE 

superintendent, not to mention numerous portions of Hugh Dorsey's ar- 
gument (the references to Lucille's initial failure to visit her husband in 
prison, for instance). Yet the elements of the motion that generated the 
most attention had nothing to do with the legality of the evidence but 
rather with the pretrial dispositions of the individuals who had rendered 
the verdict. Roared the Journal's page-one headline: 

JURORS JOHENNING AND HENSLEE BOTH ATTACKED 

They Are Alleged to Have Gone on the Jury Prejudiced. 

The motion's charges against shop foreman Marcellus Johenning and 
buggy salesman Atticus Henslee were almost identically worded. Asserted 
the first: 

Johenning had a fixed opinion that the defendant was guilty prior to, and 
at, the time he was taken on the jury and was not an impartial juror. 

Echoed the other: 

Henslee was prejudiced against the defendant when he was selected as a 
juror, had previously thereto formed and expressed a decided opinion as 
to the guilt of the defendant and in favor of the state. 

To accuse two of the jurors of pretrial bias was a risky tack. In the weeks 
since the proceedings concluded, Atlanta had elevated the men who con- 
victed Frank to an exalted status. (On a mid-September Saturday, a forty- 
car motorcade had transported the twelve to an outlying park where along 
with Dorsey, Judge Roan and the reporters who'd covered the trial, they 
were treated to a magnificent spread of fried channel catfish, barbecue and 
Brunswick stew.) Yet the defense had not made the allegations lightly, 
accompanying the amended motion with a sheaf of supporting affidavits. 
Advancing the charge of prejudice against Johenning were a coworker 
named H. C. Lovenhart and his wife and daughter. As the three recalled it, 
they'd been discussing the Phagan murder with the shop foreman in May 
when he'd said of Frank, "I know that he's guilty." Advancing the claim 
against the better traveled Henslee were men from across the state. Accord- 
ing to Samuel Aron of Atlanta, two days after the grand jury returned its 
true bill against Frank, he'd overheard the buggy salesman exclaim to a 
group at the downtown Elk's Club: "I am glad they indicted the God damn 
Jew. They ought to take him out and lynch him, and if I get on that jury I'll 
hang that Jew, sure." Farther afield, Mack Farkas, a livery stable owner in 
the Southwest Georgia town of Albany who frequently did business with 



APPEALS IN AND OUT OF COURT 351 

Henslee, declared that during a meeting shortly before the proceedings 
began, the buggy salesman had proclaimed, "I believe Frank is guilty." 



No sooner had Hugh Dorsey looked over the amended motion and its sup- 
porting affidavits than he sought a week's delay of the new trial hearing. To 
this, Judge Roan readily assented. Following several days of work, Dorsey 
announced that he'd barely gotten started and asked for another postpone- 
ment. It, too, was granted, whereupon he packed his files into several valises 
and along with his assistant, Ed Stephens, boarded a train for the south 
Georgia town of Valdosta. There, some two hundred miles from the myriad 
distractions of the city, the solicitor said he would be able to devote himself 
fully to the task of drafting the arguments with which he hoped to refute the 
defense's 115 grounds when court convened on the now scheduled date of 
October 22. 

While in Valdosta, Dorsey did more than just prepare for the upcoming 
hearing. Realizing that he could not let the sensational charges against 
Johenning and Henslee go unanswered, he spent much of his time on the 
telephone orchestrating a campaign to present the two jurors as the men 
most Atlantans believed them to be— fair and courageous citizens whose 
only interest had been in seeing justice done. Not surprisingly, the first indi- 
viduals to so declare were Johenning and Henslee themselves. Yet it wasn't 
just the men under attack who spoke up. The jury foreman, Fred Winburn, 
was equally vociferous, declaring, "The charges that the jury was prejudiced 
are untrue. The jurors were all men of honor and integrity." Others among 
the twelve also raised their voices, none more bluntly than pressman 
Charles Bosshardt, who asserted: "I say the charges are bosh." 



Dorsey's decision to enlist the jurors in defense of the trial's fairness was 
shrewd. But if he expected Frank's lawyers to retreat, he was mistaken. 
Three days after Winburn and Bosshardt vouched for Johenning and 
Henslee, Reuben Arnold, back in town and fresh from his lengthy rest, 
blasted the two, telling the Georgian: 

Henslee 's prejudice and that of Johenning alone constitute a situation 
that is sufficient to form a basis for a new trial. It is unthinkable that a man 
should be sentenced to death when two of the men were violently biased 
against him before a word of evidence was heard. 

Arnold also revealed that he and Rosser had collected even more affidavits 
bearing on the individual who was clearly their principal target— Henslee. 



35 2 AND THE DEAD SHALL RISE 

Meantime, the defense chose this moment to call attention to a number 
of other affidavits submitted with the amended motion. These documents 
all had to do with the climate in which the trial had taken place, some focus- 
ing on the already much discussed outbursts of cheering for Dorsey, the rest 
addressing the heretofore unreported charge that members of the court- 
house crowd had spoken with the jurors during breaks in the proceedings, 
exposing them to influences that by law should have been outside their 
purview. 

Making the claim that the many displays of pro-prosecution sentiment 
were witnessed by the jurors were thirteen men and women who said they'd 
been in attendance at the proceedings or nearby during the incidents in 
question. As John Shipp, Samuel Boorstin and the others told it, when 
Dorsey received the thunderous ovation from the enormous crowd that 
had been awaiting him at 6 p.m. on the trial's final Friday, the jurors were 
only fifty feet away. Boorstin, who had, of course, been with Frank the after- 
noon of his conviction, added that during the few minutes it took the 
demonstration to subside, he'd followed the twelve back to their quarters at 
the Kimball House, where he'd spotted juror F.V.L. Smith taking in the 
spectacle from an upstairs room. In a similar vein, both Martha Kay and 
Mrs. A. Shurman contended that from where they sat in the courtroom on 
the proceedings' last day, they'd watched as the twelve, already in their box, 
listened to the roar that met Dorsey's arrival. 

Making the claim that on several occasions spectators had spoken 
directly to the jurors were four other Atlantans who said they were either in 
the courtroom or in the vicinity during the incidents mentioned. According 
to W. P. Neil, he was sitting adjacent to the jury box near the end of the trial 
when a man he could not identify "took hold of one of the jurors with one 
hand, grasped his arm with the other and made a statement to him." Simi- 
larly, two witnesses contended that they'd been driving down Pryor Street 
on the Saturday before the verdict when they'd spotted the twelve out for a 
constitutional, accompanied not just by an escort of deputies but by five or 
six hangers-on who engaged the putatively sequestered men in conversa- 
tion. While these deponents could not attest to what was spoken during the 
encounters they had observed, this was not the case with Isaac Hazan. As 
he told it, at midday on the trial's last Friday, he'd watched a group of ten or 
fifteen toughs accost the jurors on their way to lunch, shouting "that unless 
they brought in a verdict of guilty, they would kill the whole damn bunch." 



Hugh Dorsey's response to the defense's second salvo was of a piece with 
his response to the first. He remained in Valdosta, while his surrogates in 
Atlanta disseminated just enough information to keep Rosser and Arnold 



APPEALS IN AND OUT OF COURT 353 

from stealing all the headlines. Atticus Henslee, for instance, revealed that 
he had, in fact, publicly expressed a belief in Frank's guilt— but after the 
verdict was in. At the same time, the solicitor's office announced that 
Detectives John Starnes and Pat Campbell were back on the job, collecting 
depositions supporting the integrity of Henslee and Johenning and investi- 
gating their detractors. Two hundred miles away or not, Dorsey was evinc- 
ing his characteristic dexterity. 



The hearing on the motion for a new trial convened in the state capitol 
library at 9 a.m. on a crisp October Wednesday. Physically, the setting could 
not have been more sedate. Facing walls lined by dusty volumes and warmed 
by a coal fire on a metal grate, the lawyers— Rosser, Arnold, Herbert Haas 
and his cousin and fellow attorney, Leonard Haas, for the defense; Dorsey, 
Stephens and Frank Hooper for the state— sat at opposite ends of a long 
table, with Judge Roan in the middle. Though a couple of dozen curiosity 
seekers milled about in an adjacent hall, only reporters and detectives were 
granted admission. No sooner had the session started than it became clear 
that the state intended to challenge the wording of each of the motion's 1 15 
grounds. Before the larger issues could be debated, every bit of the language 
in which they were framed would have to be hashed out. 

By midmorning, a rancorous and time-consuming pattern had emerged. 
Rosser would read a ground aloud, Dorsey would object to its construction, 
Rosser or Arnold would object to the objection, then Roan would consider 
the competing merits and make his ruling. Typical was the clash over 
ground seven, which as originally submitted stated that Frank deserved a 
new trial because the court had erred in allowing John Black to testify that 
the factory superintendent employed counsel the Monday following Mary 
Phagan's murder. The solicitor took issue with the phrase "employed coun- 
sel," maintaining that the detective had in actuality said "had counsel." A 
review of the transcript proved Dorsey correct, whereupon Rosser indi- 
cated his displeasure by pounding a newly acquired cane on the floor and 
snarling: "You'd hang this man on the dotting of an T or the crossing of a 
't.' " Replied the solicitor: "You're making a mountain out of a mole hill." 
Either way, the judge ordered that the ground be reworded. 

The summer's hostilities had yet to subside. On this first day, Dorsey 
spent the hour before lunch and an hour after arguing that the five grounds 
asserting that the court erred in accepting Conley's sexually charged testi- 
mony into evidence had to be rephrased to include a crucial fact that 
Frank's lawyers had curiously omitted— namely, that the defense did not 
object to the material until after cross-examining the Negro. Roan con- 
curred. Conversely, Rosser devoted considerable time to fending off the 



354 AND THE DEAD SHALL RISE 

solicitor's attempt to water down a ground contending that the jurors 
had been intimidated by "the pronounced and continuous applause" that 
greeted the court's decision to overrule the objection to Conley's explicit 
testimony. Here, Roan not only found for the defense but voiced his opin- 
ion that the twelve must have heard the outburst. Through it all, the tenor 
of the debate remained ugly. At 6 p.m., when the combatants went home for 
the evening, the judge had checked off only 42 of the motion's 1 15 grounds 
on a list he kept at his fingertips, and the names Johenning and Henslee had 
not been uttered. 

On Thursday, despite the urging of Judge Roan to make haste and cease 
scrapping, the pace was again slow and tempers short. The day began with 
Arnold reading grounds 43 through 47 of the motion, each of which dealt 
with witnesses who'd been used by the state to accuse Frank of acts of 
immorality. As the defense saw it, the allegations of Irene Jackson and 
Willie TUrner and the examination of Lula Wardlaw were prejudicial, and 
the court had erred by allowing them into evidence. Dorsey took issue with 
this view. Because the defense had not objected to the material during the 
trial, he argued, it could not do so now. True, conceded Arnold, he and 
Rosser had said nothing at the time, but, he then added, only because their 
earlier objection to the solicitor's questioning of John Ashley Jones— the 
insurance agent whose grilling regarding the factory superintendent's al- 
leged fondling of an employee's breasts sparked Rae Frank's attack on 
Dorsey— served as an omnibus objection to any later such exchanges. After 
briefly puzzling over the matter, the judge ruled in the defense's favor. 

Yet splendidly as things had gone for Rosser and Arnold at the morning 
session, following lunch the results were more mixed. The lawyers kicked 
off the afternoon by returning to the topic of the demonstrations that had 
periodically rocked the courtroom during the trial. But before they could 
read a single ground, Dorsey, still smarting from Roan's declaration of 
the day before regarding the outburst that greeted the decision to overrule 
the defense's objection to Conley's explicit testimony, asserted that the 
judge had no right to express such sentiments. "I can give my opinion if I 
wish," replied Roan, apparently putting an end to the matter. However, as 
Rosser proceeded to read each succeeding ground— one addressing the 
Friday afternoon demonstration, another the Monday morning display, still 
another a third incident— the judge again and again ordered that the 
defense's phrase "which the jury heard" be changed to read "which perhaps 
the jury could have heard." 

When the hearing resumed Friday at 9 a.m., just a few grounds remained 
to be covered, the first of them involving, at long last, Johenning and 
Henslee. To these, Dorsey offered no protest, preferring to wait until he 
could contest the actual substance of the charges. The solicitor was likewise 



APPEALS IN AND OUT OF COURT 355 

silent regarding several subsequent points. By midmorning, all that was left 
was a ground concerning the events that had prompted Rosser and Arnold 
to forfeit their client's presence at the reading of the verdict. To this, Dorsey 
did take exception, declaring that the lawyers had agreed to the arrange- 
ment at the time of its proposal and therefore lacked the right to revisit it. 
Rosser countered that the ferocity of the crowds was so great that they'd 
been forced into the decision. Moreover, the lawyer added that the pande- 
monium greeting the guilty verdict had denied Frank his ultimate safe- 
guard—a quiet polling of the jurors. As proof of how bad the climate was, 
Rosser cited Roan's decision on the trial's final Saturday to allow the solic- 
itor to halt his argument. In the process, the lawyer not only confirmed the 
report that the action had been taken due to fear of violence, but shed light 
on a piece of information that explained why Atlanta's newspapers had said 
nothing— the editors of the Constitution, the Journal and the Georgian had 
themselves secretly urged the judge to bring down the gavel. Confronted by 
these facts, Dorsey shrugged his shoulders, and Roan ended the session by 
accepting the concluding ground as written. 



In theory, the presentation of the two sides' supporting documents— the 
task that would consume most of Friday afternoon and the final step before 
the commencement of formal arguments— did not offer much promise of 
headline-making revelations. And as Rosser and Arnold alternated in recit- 
ing the defense's affidavits, all of which had been dissected in the press dur- 
ing the past month, the low expectations seemed more than warranted. Yet 
no sooner had Frank's lawyers wrapped up and Dorsey begun to speak than 
pulses quickened, for the solicitor started off by dropping a bombshell. 
According to the statement of jury foreman Fred Winburn, not only was the 
embattled Atticus H. Henslee not biased against Frank, he had been the 
panel's lone holdout against conviction. In a quietly confident voice meant 
to underscore the significance of the jury foreman's disclosure, Dorsey read: 

I did not know how A. H. Henslee stood on the issue until after the first 
ballot had been taken; then said Henslee made a talk and stated that he 
had cast a doubtful ballot; there was one ballot marked "doubtful"; he 
explained to the jury why he cast this doubtful ballot, and submitted some 
suggestions with reference to the evidence. Up to that time, so far as I 
know, said Henslee had not intimated or expressed any opinion whatso- 
ever with reference to any feature of the case. 

The import of Winburn's affidavit was instantly apparent, and Dorsey 
followed it with nearly verbatim pronouncements from the other jurors— 



35 6 AND THE DEAD SHALL RISE 

to a soul, they seconded their foreman's assertion that had it not been 
for Henslee, they would have convicted Frank on the initial ballot. The 
clincher, however, was an affidavit from the buggy salesman himself. In the 
same steady tone with which he'd put forward the previous statements, 
the solicitor read: 

As illustrating the attitude which I occupied in this case, I will say that 
when it came time to vote, I cast a doubtful ballot. I did this on the first ballot 
because of the unanimity of opinion that Frank was guilty, as expressed by 
those jurors who discussed it after the court's charge and prior to the ballot, 
and for the purpose of forcing a full and free discussion of the case before 
rendering a verdict, as we understood it might consign Frank to his death. 
When on the second and last ballot a unanimous verdict of "Guilty" was 
rendered, I— in common with each and every other man on the jury —wept. 



In the matter of a few moments, Dorsey had called into question one of 
the defense's central premises. As the solicitor continued to read from 
Henslee's statement, he went even further. According to the buggy sales- 
man, contrary to the allegations of Samuel Aron, he'd never said to a group 
at the Atlanta Elks Club: "I'm glad they indicted the God damned Jew." 
Nor would he have. "The club has among its members a large number of 
Jewish people, many of whom are my friends." Henslee's response to Mack 
Farkas's assertion was equally convincing. Not only did he deny having seen 
the Albany livery stable proprietor in the weeks before the proceedings, he 
said that when he did call following Frank's conviction, he refrained from 
discussing the case "because the said Mack Farkas and the said Leo M. 
Frank were of the same religion and [I] did not want to hurt his feelings." 

Having thus done what he could to rehabilitate Henslee, Dorsey next 
tried to rehabilitate Marcellus Johenning. First, the solicitor read affidavits 
from Winburn,Townsend and the others, all of whom swore that at no time 
during the trial did their fellow juror "express himself in a way to indicate 
that he was in the least bit prejudiced against Leo M. Frank." Then came the 
predictable statement from Johenning himself, in which he not only denied 
having felt or expressed any prejudice against the factory superintendent 
but pointed out that the Lovenharts were "of the same race and religion of 
Leo M.Frank." 

While Johenning's assertions lacked the dramatic certitude of Henslee's, 
they effectively played upon the widely held view that Atlanta's Jews had 
blindly taken up Frank's cause. On their strength, Dorsey switched gears, 
introducing a number of statements to refute Rosser and Arnold's claim 
that the trial's partisan crowds had terrorized the jury into its verdict. The 



APPEALS IN AND OUT OF COURT 357 

solicitor began by reading affidavits from each of the twelve men at the 
heart of the debate. Typical was the statement of the hardware store sales- 
man Monroe S.Woodward, who, Dorsey related, had deposed: 

I did not at any time, while a juror, hear any applause except such as 
occurred in open court, and which was heard by the judge and attorneys in 
the case; I did not know there had been any cheering of anybody con- 
nected with the case at any time or that there had been any cheering in any 
way growing out of or connected with the Frank case, until after the verdict 
was rendered, and I was told about said incidents. The jury left the court- 
room before the judge, lawyers and audience were permitted to leave, and 
there was never any applause or cheering inside of the court or outside of 
the court within my knowledge while the case was being considered. 

A general disavowal thereby issued, the solicitor tendered Woodward's dis- 
missals of a number of the defense's specific claims regarding the specta- 
tors' impact on the jury. For starters, the salesman disputed the charge that 
a group of hangers-on had strolled alongside the twelve during their consti- 
tutional on the trial's final Saturday. Then he denied the allegation that 
someone in the gallery had shaken hands with and spoken to one of the 
jurors. Finally, he denied the contention that the hurrahs following the ver- 
dict had influenced the polling of the jury. 

Once he'd finished with the affidavits of Woodward and the others, 
Dorsey introduced supporting statements from court officials. Echoing the 
view that the jurors were not compromised by any of the trial's commotions 
or by contact with crowd members were the deputy in charge of security 
during the proceedings, the bailiffs who'd guarded the panel and the clerk 
of the superior court. These men were also unanimous in their dismissal of 
several of the defense's related allegations, most significantly Isaac Hazan's 
charge that rowdies had threatened the jurors with violence if they did not 
vote to convict. 



After Dorsey read a last batch of affidavits, each of them attacking the 
integrity of one of the defense's standard-bearers and all undoubtedly 
obtained by Detectives Starnes and Campbell, Reuben Arnold took the 
floor. The lawyer began his argument by speaking directly to Judge Roan: 

It takes thirteen jurors to murder a man in cold blood. So I feel I am not 
only justified but required, by the scope of your honor's authority and duty 
and the tremendous responsibility that rests upon you, to argue to the 
court the facts of this unusual case. 



358 AND THE DEAD SHALL RISE 

This was a bold statement. Instead of addressing the points put forth in the 
motion, Arnold intended to readdress the evidence, sidestepping the body 
that had found against his client. As he saw it, he had no choice. Declared 
the lawyer: A religious bias "that has reflected no credit for two thousand 
years on the race to which your honor and I belong" infiltrated the court- 
room, affecting the panel's judgment. The result: 

Argument was lost upon that jury. There they sat, huddled like twelve 
sheep in the shambles. Talk to me about those jurors not having been influ- 
enced by such surroundings. They may not know they were. Nor did the 
rabbit that ran through the briar patch know which briar scratched and 
which did not. 

That said, Arnold plunged into the task of convincing his audience of 
one. His first topic— Jim Conley. Asked the lawyer: 

Was ever a case heard of before where the only witness on whose testi- 
mony the conviction rested was a party to the crime both before it was 
committed, by watching, and after it was committed, by helping to conceal 
the body; was a criminal of the lowest type and as absolutely devoid of con- 
science as a man-eating tiger; one who lied in writing four different times, 
and who never confessed anything about the crime until the evidence was 
discovered on him that he had written the notes that accompanied the 
body; who admitted he lied many times in his affidavits; and where after he 
made his last affidavit, the story that he brought into court was so unlike it 
that you could hardly recognize any points of similarity? 

Arnold then reiterated the defense's theories regarding the origination 
of Conley's tale. The Negro, he told Roan, had heard "the slanders uttered 
against Frank" during the days following Mary Phagan's murder. After 
Conley's connection to the notes was subsequently discovered, "he saw his 
own life trembling in the balance and was compelled to say someone else 
was the real author and he named Frank." His initial statement, however, 
was rife with improbabilities. "Left alone," Mister Rube asserted, "the 
negro spread out over the whole territory of asininity." Which was why the 
detectives lent a hand. "They took his story like you would take a rough 
piece of timber and fashioned it over with the power of machinery." And it 
wasn't just the investigators who were involved. Tbrning to face Dorsey, 
Arnold accused the solicitor of interjecting the "perversion evidence" into 
the trial "merely to prejudice the jury." Then, turning back to the judge, he 
brought Friday's session to a scalding close: 



APPEALS IN AND OUT OF COURT 359 

If Leo Frank is hanged, I'd rather be dead and rotting in my grave than 
in Hugh Dorsey's place. His conscience will drive him crazy, distracted and 
to God only knows what ends. And it will be no less than his just deserts. 

Saturday, Arnold directed Roan's attention to weaknesses in the state's 
circumstantial evidence. First, he dismissed the incriminating inferences 
Dorsey had drawn from Frank's April 26 letter to his uncle, insisting that 
such expressions as "it's too short a time since you left for anything startling 
to have developed" were commonplace. Then he repeated the defense's 
chronology of the murder day, reasserting that Mary Phagan did not reach 
the pencil factory until 12:10 p.m. — five minutes after Monteen Stover 
claimed to have entered the superintendent's office and discovered it empty. 
"Your honor," the lawyer insisted, "the state's case falls to the ground here. 
Jim Conley says Mary Phagan came in before Monteen Stover came in." 
And there were other discrepancies. After reminding the judge that the 
Negro maintained it was 12:56 when Frank asked him to move the body, 
Arnold posed a tough question: If, as several experts swore, the job and the 
subsequent note writing took over thirty minutes, then how could such wit- 
nesses as Helen Kerns and Mrs. Albert Levy have seen Frank standing on a 
downtown corner at 1:10 and exiting a streetcar near his house at 1:20? 
There was only one answer: Frank, as he'd stated, had departed the building 
at 1:00, unaware that a crime had been committed. "Your honor," declared 
the lawyer, "this is not a case of believing the defendant to be innocent; we 
are demonstrating his innocence." 

Arnold next raised the topic of Frank's character. After once again prais- 
ing the "upright and honorable" men and women whom he and Rosser had 
put on the stand to vouch for the superintendent, he attacked the former 
factory employees Dorsey had called to rebut such praise. Dismissing Irene 
Jackson and the others as members of "the discharged employee class," he 
told Roan: "Class hatred was played on here." Which was why, he added, 
several of the state's witnesses had tried to link the plant superintendent 
sexually with forelady Rebecca Carson. "Those little girls had been dis- 
charged by Miss Carson and glad to say anything against her." Was it any 
wonder, the lawyer then asked, that he and Rosser had not cross-examined 
them? "These girls could have been loaded with five thousand slanders. 
That was what was done with Jim Conley. Every question we asked on that 
line would have been used before that gaping mob against us." 

Arnold next fired several salvos at the state's evidence suggesting a his- 
tory of improprieties on Frank's part. Regarding Conley's testimony that he 
had served as a lookout over a period of several months while the superin- 
tendent conducted liaisons with girls in his office, the lawyer was incredu- 



360 AND THE DEAD SHALL RISE 

lous. "That 'watching' story is preposterous. What good could Conley have 
done? What white man could this negro have kept out anyhow? But to bol- 
ster up their theory, some reason had to be given why Conley and Frank 
were coming in contact in a transaction that would ordinarily admit no con- 
fidants." Then there was the individual the solicitor had put on the stand to 
lend credence to Conley's allegations. With evident loathing, Frank's co- 
counsel spat: "Dalton! In this case they seem to have seined the lowest 
strata of society for the ugliest, dirtiest reptiles that move about in the ooze 
of the bottom." 

Thus far, Arnold had confined himself to matters that he and Rosser had 
covered at least in part during their closing arguments at the trial, but he 
now steered Roan to a subject that the duo had unaccountably avoided— 
the murder notes. "These notes," he said, "are negro notes from beginning 
to end. They are idiotic and ridiculous and inconceivable to the intelligent 
brain." The lawyer then ticked off several particulars that he believed laid 
the missives' authorship at Conley's feet. For openers, he asserted that a 
phrase in the note jotted on the pencil company order blank indicated that 
Mary Phagan, just as the defense had maintained, had been murdered in 
the factory lobby: "This note says, 'He pushed me down that hole.' There is 
no hole she could have been pushed down in the metal room, but there are 
two holes on the ground floor at the bottom of the steps. One is the elevator 
shaft, the other is the trap door down which the ladder leads. Conley, know- 
ing that he pushed the girl down one of these holes, unconsciously brings 
this fact out in the note." Then there was the line in the other note declaring 
that "a long tall black negro did this by hisself." Though the solicitor had 
maintained that the phrase fingered Frank in attempting to hide that two 
men were involved in the crime, Arnold believed that in actuality it 
reflected Conley's attempt to lay the murder at the feet of a slender Negro 
who had heretofore been unmentioned in the case, a plant boiler opera- 
tor— "the negro hire down here"— named William Nolle. Finally, there was 
the fact that the notes existed at all, which to Arnold's thinking was incom- 
patible with Conley's statement that the original plan had been to burn the 
body. "Conley," the lawyer argued, "saw that he must come up with an 
explanation for the notes. So he says they were written so that if he never 
came back to burn the body they would explain the killing. Yet Frank had 
no reason to believe the negro would not come back. Was ever an explana- 
tion more preposterous?" 

Arnold's dissection of the notes, while long overdue, was cogent and 
effective. But his comments on the topic with which he concluded Satur- 
day's session— the defense's failure to place William H. Mincey on the 
stand— were less so. Though he explained the initial enthusiasm those in 
Frank's camp felt for the insurance salesman ("Mincey claimed that Conley 



APPEALS IN AND OUT OF COURT 361 

made to him a certain statement") and justified Rosser's grilling of Conley 
regarding the salesman ("It was our duty"), as to why the much anticipated 
witness was never called, he could say only: 

Mincey's tale may have been true, but it did not impress us as evidence 
that was probable and reasonable, and rather than burden our case with 
anything doubtful, we decided against putting him up. 

Monday morning, after having spoken for the better part of three days, 
Arnold ended his argument where he had begun it. Anti-Semitism, he again 
asserted, offered the sole plausible rationale for the zeal with which the 
police had pursued Frank and the hostility that had surrounded the trial. 
Dorsey, he once more proclaimed, had fed "the poison of prejudice to those 
jaybirds in the jury box," one of whom— and here the lawyer made his lone 
reference to anything contained in the motion actually before the court— 
was Atticus H. Henslee. All of it, he repeated, had blinded the twelve to the 
truth: "The murderer of Mary Phagan was Jim Conley, a perpetual law- 
breaker who has a law-breaking race back of him." Having so stated, 
Arnold turned to Roan and urgently implored: 

If your honor denies this motion, so far as the facts are concerned, this 
case is forever at rest. The Supreme Court has no jurisdiction over ques- 
tions of fact where the witnesses are in conflict. It takes errors of law for 
that court to interfere. Your honor alone has the duty and responsibility of 
approving this verdict or setting it aside. 

Not surprisingly, Frank partisans took great heart from Arnold's oratory, 
anticipating not only a favorable ruling but, for the resulting rehearing of 
the case, a change of venue to the presumably less hostile port city of 
Savannah. Speculated the Constitution's front-page headline: next trial 
may be held in Chatham county. Yet even as such hopeful prospects 
were being bandied about, back in the capitol library the state's lawyers 
were launching into their speeches, and from the start it was plain that they 
regarded Arnold's argument as beside the point. The murder notes' prove- 
nance, Jim Conley 's veracity— the jury had already ruled on these matters. 
As Hugh Dorsey and Frank Hooper saw it, the sole issues at stake were 
those that had been raised in the amended motion. 

As at the trial, Hooper spoke first, his primary task once again to pave 
the way for Dorsey. Beginning shortly after Monday's lunch break, the 
solicitor's co-counsel cast doubt on what the state viewed as the motion's 
most vexing ground— the allegations of prejudice against Henslee. Terming 
the charges "improbable and ridiculous," Hooper denounced the individu- 



362 AND THE DEAD SHALL RISE 

als who'd given the defense supporting affidavits, accusing them at best of 
being mistaken, at worst of lying. 

Following Hooper's brief remarks, Dorsey rose to his feet, but with the 
cool autumn dusk already descending, he had time only to convey a hint of 
what was to come, proclaiming: 

If the verdict of guilty against Leo Frank is set aside upon such trivial 
grounds as the convicted man's lawyers recite in their motion, it will justify 
very largely the contempt in which people are beginning to hold their 
courts and the administration of their laws. 



Tuesday morning, Dorsey embarked on his presentation in earnest, begin- 
ning, predictably enough, with the subject of Henslee. He dismissed the 
accusations leveled against the juror, then declared that even if he had 
made the comments attributed to him, they did not constitute evidence 
of pretrial prejudice. Rather, Henslee had merely expressed his opinion, 
which, insisted the solicitor, was his right. 

Till this point, Dorsey had maintained a conversational tone, but as he 
took up his next topic— Arnold's allegations regarding the purported anti- 
Semitism that had permeated the proceedings— he grew indignant: 

The people were not aroused against Leo M. Frank because he is a Jew 
but because he is a criminal of the worst type. In the name of the Gentiles 
of Atlanta, I declare that when the counsel for the defense charges the jury 
with bias and charges Atlantans with intimidating the jury with a display of 
mob spirit, they are slandering the citizenship of the entire community. 

That said, Dorsey conceded that "the people in the streets did holler for 
me." By his lights, however, the outbursts were meaningless. "The counsel 
for the defense has chosen to warp them." 

In the wake of his comments on the trial's atmospherics, Dorsey com- 
menced his principal response to Arnold's argument. For three days, he 
said, Frank's co-counsel had "ranged far and wide." He was "eloquent 
tongued" and "impressively trembling." But none of it was relevant. "As I 
understand it," the solicitor reminded Roan, "the only matters on which 
your honor is to pass are the question of bias on the part of the jurors, the 
question of cheering and demonstrations, questions of law and the question 
of Conley's evidence in respect to the defendant's moral conduct." 

With that, Dorsey cited a number of precedents upholding the admissi- 
bility of Conley's controversial testimony. Then he turned to Roan and by 
way of ending declared: 



APPEALS IN AND OUT OF COURT 363 

Your honor said at the close of the trial that you had endeavored to see 
that Frank was given a fair and impartial trial. Either that statement meant 
everything or nothing. 

Late Tuesday, Luther Rosser inaugurated the hearing's concluding argu- 
ment by reemphasizing his belief in Frank's innocence, telling Roan, "As 
God is in the heavens above, I believe that in yonder cell rests an innocent 
man." 

Wednesday, Rosser came on even stronger, taking violent issue with 
Dorsey's claim that in condemning the throngs congregating in the streets 
during the trial, Arnold had defamed all of Georgia: 

What does Mr. Dorsey mean by the charge that Mr. Arnold criticized 
the whole state? Does he mean that those who crowded around the court- 
house crying for blood are the people he so obligingly serves? If they are 
the people, thank God I do not serve them. They were there deliberately to 
scream with delight because the blood of a human being was about to be 
shed. 

Though characteristic of Rosser, such talk was more than bombast. Real- 
izing Dorsey, by ducking Arnold's sorties against the state's evidence, had 
undercut that line of attack, Frank's lead counsel was mounting a last-ditch 
campaign to highlight the amended motion's most compelling particulars. 
Accordingly, Rosser reviewed the allegations of pretrial bias against Johen- 
ning. He then revisited the affidavits involving Henslee. Which left one last 
ground— the solicitor's decision to elicit Conley's testimony accusing Frank 
of perversion. Hirning to Dorsey, Rosser charged: 

You might as well have put the brand of Cain upon Frank's forehead as 
to have introduced that revolting and maliciously false testimony. You 
destroyed his life the instant you brought that in. There is no doubt about 
it. When Conley poured out his filthy tale, there was left in the mind of the 
jurors no room for any thought that Frank might be innocent of murder. It 
damned him instantly. 

Hirning back to Roan, the lawyer brought his oration to a close: 

Dismiss from your mind, your honor, the anarchy that the solicitor gen- 
eral threatens if another trial is granted. I dispute, your honor, that a new 
trial would be a blow to the judiciary. It will instead preserve justice, for 
there will come a time when the people will wonder how such things could 
have taken place as occurred in the trial of this man. 



364 AND THE DEAD SHALL RISE 

By 9 a.m. Friday, Judge Roan's Thrower Building chambers were packed 
to overflowing.The familiar players— Dorsey, Hooper, Arnold and Rosser— 
sat up front, while an army of reporters, several members of the Selig family 
and as many of the curious as the space allowed stood along the walls. After 
spending Thursday in deliberation, Roan had reached his decision, and the 
suspense, noted the Georgian, "was greater than the time last August when 
the crowd was awaiting the verdict against Frank." Yet unlike that hot after- 
noon, on this last day of October the mood was sober. Observed Hearst's 
man: "Impressed by the portentousness of the occasion, the people in the 
room looked on in silence and a certain dread expectancy." 

For an hour, the tension mounted as Roan reviewed the motion, assuring 
himself that its grounds had been reconciled and affixing his signature 
where required. Then, at 10:04, with a slight tremor in his voice, the judge 
began to speak: 

Gentlemen, I have thought about this case more than any other I have 
ever tried. I am not certain of this man's guilt. With all the thought I have 
put on this case, I am not thoroughly convinced that Frank is guilty or in- 
nocent. 

In the end, though, Roan's misgivings were not at issue here, for the law— 
as Hooper and Dorsey had contended— was clear, and it was the law that 
would prevail. Thus the judge concluded: 

But I do not have to be convinced. The jury was convinced. There is no 
room to doubt that. I feel it is my duty to order that the motion for a new 
trial be overruled. 



The immediate reaction by the members of Frank's legal team was one of 
bitter disappointment. Within a few seconds, however, Rosser had recov- 
ered sufficiently to confirm that the defense would appeal and to insist that 
the judge's stunning admission of uncertainty be included in the Bill of 
Exceptions that would carry the case to the Supreme Court of Georgia. To 
this, Dorsey furiously objected. Yet before the dispute could escalate, Roan 
ended it by simply directing that his remarks go into the record. Which 
meant that terrible as the defeat that Frank had suffered was, the high 
court, whose winter term was slated to begin in mid-December, would have 
to take into account the trial judge's pronouncement that he entertained 
doubts as to the condemned man's guilt. 

The debate regarding Roan's extraordinary statement began almost 
instantaneously. Proclaimed the Georgian: "Judge Roan has put himself at 



APPEALS IN AND OUT OF COURT 365 

the head of that group of men and women who only ask for fair play." Out 
in the state, however, the consensus was less favorable. "Judge Roan dis- 
played very bad taste and less judgment," declared one rural weekly. 
Asserted another: "It was none of Roan's business to be convinced of 
Frank's guilt." 

There were equally heated discussions in legal circles regarding whether 
Roan's remarks would influence the Supreme Court's thinking. Though no 
one from either side commented publicly, privately lawyers in the defense 
camp believed that the judge had guaranteed the appeal's success. In fact, 
even as Rabbi Marx and Leonard Haas were informing Frank of Roan's 
decision (the condemned man took the news stoically, although Lucille, 
who was with him at the Tower, once more burst into tears), Herbert Haas 
was writing Louis Marshall: 

Our Supreme Court has held more than once that it will reverse the 
judgment of the lower court declining a motion for a new trial where, in the 
bill of exceptions, it is certified that the presiding judge himself is in doubt 
as to the guilt of the defendant. 

On the evening of Saturday, November 8, exactly a week and a day after 
Leo Frank's motion for a new trial was rejected, a group of the nation's 
most powerful and best-known Jewish leaders filed into the Trustees Room 
of New York's ornate Temple Emanu-El, the city's preeminent Reform syn- 
agogue. The occasion was the monthly meeting of the executive committee 
of the American Jewish Committee, Louis Marshall presiding. Among 
those present were the Hebraic scholar and writer Cyrus Adler, United 
Jewish Charities president Cyrus L. Sulzberger and Chicago judge Joseph 
L. Mack, one of two Jews on the board of Harvard University. But by far the 
most commanding figure was Jacob H. Schiff, managing partner of the mer- 
chant banking house of Kuhn, Loeb and Company and the sole American 
financier acknowledged by J. Pierpont Morgan as a peer. 

The topic that would dominate the committee's discussion, as the 
recording secretary delicately put it, was "the case of Leo M. Frank, the 
young man who was recently convicted of murder in Atlanta." At issue was 
whether the group, in the wake of the factory superintendent's latest set- 
back, should enter the fray, and the members— despite unanimity as to the 
merits of the matter— were split regarding tactics. Arguing in favor of open 
involvement was Schiff. Imperious in his frock coat and white tie and ani- 
mated by an abiding concern with social justice for his coreligionists, the 
banker wanted to start a public fund. (Frank's defense had thus far cost 
$50,000— most of it coming from his uncle Moses, who'd recently expressed 
a reluctance to keep spending.) Taking the other view, not surprisingly, was 



366 AND THE DEAD SHALL RISE 

Marshall. "It would be most unfortunate if our organization were to be con- 
sidered championing the causes of Jews who are convicted of crimes," he 
explained. Such a position was, of course, consistent with Marshall's initial 
stance, yet it sprang from more than adherence to principle. A backlash 
against Jewish support for Frank had begun to manifest itself —and not just 
in Georgia. 

jews fight to save leo frank, declared the headline atop the lengthy 
recapitulation of the case that dominated the New York Sun's October 12 
editions. The murder of Mary Phagan, the factory superintendent's arrest, 
the trial— all were evenhandedly presented. But when the piece, the first 
major account to run in the Northern press, raised the question of whether 
Frank's Jewishness had played a role in the outcome, it expressed doubt, 
noting: "Atlanta is probably freer of the Juden-hetze spirit than any city in 
the South." This was fair comment. What followed, however, was worri- 
some: 

Prejudice did finally develop against Frank and also against the Jews. 
But Frank's friends were responsible for this anti-Semitic spirit. 

Some Jews were credited with saying that even if Frank did kill Mary 
Phagan she was nothing but a factory girl. 

Such remarks as these soon caused a decided anti-Semitic feeling and it 
continued to grow during the trial of Frank. The feeling was increased 
when Frank's mother, who came here from Brooklyn to attend her son's 
trial, denounced Mr. Dorsey in the courtroom as "You Christian dog." 

The anti-Semitic feeling was the natural result of the belief that the 
Jews had banded to free Frank, innocent or guilty. The supposed solidarity 
of the Jews for Frank, even if he was guilty, caused a Gentile solidarity 
against him. 

The choice facing the American Jewish Committee's executive commit- 
tee was a stark one. To campaign publicly for Frank's exoneration would be 
to risk further charges of Jewish interference. Conversely, to do nothing 
would be to leave the factory superintendent without assistance from an 
organization whose purpose was to combat the very anti-Semitism that 
appeared to have been involved here. In the end, however, there was a third 
way, and it is what prevailed. Though the group closed the session by 
"resolving to take no action with respect to the Frank case," from this night 
forth, its members would work, just as Marshall had hoped, behind the 
scenes. The goal: to build a nationwide coalition of influential Jews who, 
whatever the decision by the Supreme Court of Georgia, could raise money 
for and shape opinion during the protracted fight that was sure to follow. 




' :; . ??. 



Rudolph and Rae Frank, circa 1895 
(William Breman Jewish Heritage Museum, Atlanta) 







Lea Frank, age nine (wbjhma) 




Leo Frank (right) with a friend in his Cornell dorm room, circa 1905 

(wbjhma) 




Leo Frank on Cornd] + 5 tennis courts, circa 1905 

(wbjhjua) 




Lucille Selig, circa 1909 
(wfijhma) 




Lucille Selig and Leo Frank, circa 1909 
(wbjhma) 




Mary Phagan, circa 1913 
(Joe McTyre Collection, Alpharetta, Georgia) 




National Pencil Company, circa 1913 
(Atlanta History Center) 



It 



ncJPX/O. 



37 £ 39 SOUTH FORSYTH ST. 



Bell Phone Main 171 



Atlanta. Ca„ : 1SK)^_« 

"fe."' 

PWT THIS ORDER tiUMBBR ON YOUR BILL. 1 I ^77" \ 

— *&;;- .; 



Order No.. 






*Hs*S 



jfj^.r.' :auv Ain^M^l 



.^ ,( 7.//.t//X'^ 4j^^ 












■'YJUjJ^M^ 

#s'.aa& X^-mXj jjjbjyyjti/ Ala JLh j/jJ^o^c " 



I ft 



The murder notes 

(American Jewish Archives, 

Cincinnati Campus, Hebrew Union College/Jewish Institute of Religion) 



M'KII, ">* 




In Hi- i-Im^ip'"" i| ii u** tfeftVftl H*> .tr-Pt, |tj who**. »Ui« ha! ;* «l< Kp ' nut ri ' »tr riMiuii* 
II In Hun |*h;l</.-Ji WU*T\ Hfe* 1 WW f IH i- iv*l ,it*i» itfth- HlKW Willi U Uicll Oi* Wm sTnihtflriJ 



A photograph of the clothes Mary Phagan was wearing 

when she was murdered and the rope with which she was strangled, 

which ran in the Atlanta Georgian on April 30, 1913 




An editorial cartoon in 
the Atlanta Constitution that attacks the Atlanta police, May II, 19 13 




Atlanta police headquarters, circa 1913 
(Atlanta History Center) 



The Atlanta Georgian IXfflANoJi! 



USSTIEA* 



vr\i. SI >;u sa* 






POLICE HAVE THE STRANGLER 



MAUI. 

koneon 

iNTENEGRO 



Late this afternoon, Chief of Detectives La n for J made 
this important statement to a Georgian reporter: "We 
have the strangles in my opinion the crime he* between 
two men, the negro watchman. Newt Lee and Frank, We 
have eliminated John Cantt and Arthur MuNinax." 

JL-Tl^SKyirjg^ SZ&F RA NK A ND NEGRO ARE 
* GIVEN i"THlRD DEGREE" 




The Atlanta Georgian, April 29, 1913 




Hugh Dorsey 
{Atlanta Journal-Constitution) 




Luther Rosser, uncharacteristically wearing a tie* 1913 
(wbjhma) 




Jim Conley T [913 
( Watson 's Magazine) 




Reuben Arnold, 1913 
(Courtesy Thomas Arnold) 



William Smith, 

"A Tramp Alumnus," circa 1900 

(Courtesy Walter Smith) 




Leo and Lucille Frank at the trial 
(Joe McTyre Collection, A Ipharetta, Georgia) 




Hugh Dorsey examining Newt Lee on the opening day of the trial 
(William Pullen Library, Georgia State University) 




Leo Frank portrait for Collier's, 1914 
(wbjhma) 




Tom Watson at the time of the Frank case 

(Southern Historical Collection, 

The Library of the University of North Carolina at Chapel Hill) 




Governor John Slaton, 1915 
(Joe McTyre Collection, Alpharetla. Georgia) 




Downtown Atlanta, looking North on Peachtree Street, 1914 
(Atlanta History Center) 




Herbert Clay at the wheel with Marietta belles, circa 1910 
(Marietta Museum of History) 




Advertising magnate Albert D. Lasker 
(Corbis) 




Detective Williarn Burns 
(Corbis) 




The interior of the Georgia State Prison Farm in MiiledgeviUe, 1915 

(Corbis) 




AdolphS.Ochs 
(HuUon Archive) 




William Randolph Hearst 
(Hulton Archive) 




e3effer50nia 



Vol. 12, No. 34 



Thomson, Ga„ Thursday, August 26, 1915 



Price, Five Cent* 



"Tiie Wages of Sin is Death 



**. 



" FUN AH, the daughter of Jacob . . . went 

' L ^ out to see the dnnghters oT the land; 
and when Shcchem, . . . prince of the coun- 
try, yiw her. ha took her, and- lay with her, 
and deplcd ha: 

And it came to pnss, on the third day, 
when (hey were- sore, two of" t'«e sons of 
Jaeob, Simeon find Levi, . . . too 1 ' enc h man 
his sword, nnd came upon' the ciiy (of the 
prince), and ttfow aTl the malet. 

And they slew Shoehorn "(and Hamor, 
his father) with the edge of the. sSvord, and 
took Djrnh out of Shechenrs house. 

The sons of Jacob en mo upon the slain, 
and spoiled t he city, because they had dc- 
f\Ud fhciv sister. 

And nil their wealth, and nil their chil- 
. 'dreri. (little ones) and their wirns took Lhey 
captive." 

Aivd when Jncob whimpered Jiis fears 
that tjio Cannnnifes and rerizziles would 
combine against the .few Jewv' and kill 
them, Jacob's bold, sons sternly answered 
their father: 

"Should he (QhefehenO d'al w'h OUR. 
SISTER, as with an harlott" , * 

(Genesis. 34tit chapter.) 
"""Kohbi'W-isr. of- XeAV York C^af^k«OUJ5a;j 
dca;U against' cvei'y -member of iw^'igilance 
Commit teo which executed -upon Leo Frank 
the sentence the Laui had th'ct tinges pro- 
nounced in the court roomj find which the 
' Shei-jfi" would have executed, had not one 
of. 2? rani? $ own, lawyers illegally commuted 
'Ms sentence. 

■Rabbi Wise fiercely demands that every 
official connected with our Prison establish- 
ment, be sent to tho penitentiary for life. 

Eabbi Wise, Nathan Straus, and the Jew- 
ish pettifogger, Louis Morshall, demands 
that I bo indicted for murder. 

Mary Phagan was not Jacob's daughter, 
you sec. 

Mary Phagan was not the sister of 
Jacob's sons, yon see. 

Mary Phagan was nothing but a Canann- 
ite; and the Jewish prince, thorcfore, had 
a right to tnho her and defilo her — the young 
prince who slept in a blue silk flight gown-y 



when the sons of the Cnnaanites came upon 
him. 

' The sons of Jacob did not accuse SWchem 
of violence to their sister. Dinah ap- 
penved to be willing. She was continuing 
to live with the prince. He hnd not strnck 
her in the foce, v knocked her against » crank 
Jinndle, rendered her unconscious, and then 
choked her to death with a cord. 

Dinah made, no complaint: Dinah evi- 
dently meant to remain with the prince. 

Hnmor, the fnther of the young prince, 
went to Jacob, and pleaded with the pa- 
triarch, urging him to give Dinah' to 
Shechem in honorable marriage. 

Shtehcm himself went humbly to Jncob, 
and begged for Dinah in marriage. 

All the reparation that any man can 
make, after such, a sin, Shcchem. earnestly 
offered -to make. 

'With deceit in his heart (Urn Jewish 
writer of Genesis says so) Jacob gave Ma , 
consent to the marriage, upon condition" that 
nil the young males of the city of Hnmor 
-and Shechem. be circuntxfccd. 



■ By tin s highest court ■ j«f' earth, I.eo 
Frank's trial was pronounced' legal 
and fair. 

By the highest court in Georgia, the ev- 
idence was declared to be sufficient 
to support the yerdict of the jury- 

By the Judicial department -of our State 
government, Frank's guilt had been as- 
certained, and the death penalty im- 
posed: 

By one of hi* own Lawyers, the verdict 
and the decisions were oil brushed 

BY THE PEOPLE, that void act of 
Frank's lawyer was ignored, and the 
sentence carried out. 

The Law forfeited this man's life, 
for a horrible crime, arid he has paid. 

That's all. 

Now let outsiders attend to their own 
business, AND LEAVE OURS ALONE. 



Tha condition whs complied with: "every 
mido was circumcised:" and then, it wai. that 
the Jews, without any trial nt Inw, without 
any sentence of any court, fell upon ..the 
people whom they had craftily thrown o(F 
their guard: and these Jews wreaked indis- 
criminate slaughter upon young and old, 
main and -female, innocent and guilty. 

They slew the old father, Hninor, who 
'had none to Ja/nh and pleaded for peace , 
rc\,ynrif}iitioi. and atonement. 

'iVi >.'..• robbed every dweller in the city, 
taking the cattle., the crops, and the wealth 
stored in tho houses. - 

They took the innocent icicct of the inno- 
em/ men whom they had put to the sword-. 

They took these i mux-en t wives into ca)>- 
tivity, to become the slaves 'arid the con- 
cubines of the Jews. 

They took ' ; tho little ones" — the boys nnd 
girls — to make servants, of them, and to use 
the girls as Enstem^hisfc hns always used 
' heTplesi women. --::■-■ 

There s the record! GO HEAT* ,17 , 

RA/iJil WISE/ Go and read it, Nathan 

hi rant! 

\ '\\~' '>' own scribes wrote it : nnd for more 

1 •-■r-f "wo thousand years voir have held it 

{.■*-. :o-^irredly true. • } f 

Did your God sn net ion that vengeance, 
visited upon- a- man and his people, because 
of the defilement of one consenting Jcwest? 

You say Ubat He did: you say that- He 
blessed Jacob greatly, and you are exceed- 
ini/ly iot\d of naming your sons after Simeon 
and Lori^ the sons of Jacob, who did this 
thing. 

What about it, Rabbi Wise? 

What about it, Nathan Straus? 

Have you one code for n Jewess, nnd an- 
other for a Gentile girl? 

Tell us I Wo believe thnt you have; and 
that you have secretly and powevfully or- 
gan ized to enforco it. 

We believe that your Imr exempts the 
Jew who defiles the Gentile maiden. 
■ We bolievo thnt your lau: permits the 
■ libertine Jew to use our fiister, as an harlot. 

If you haven't that kind of law in your 
(continued ok pace two.) 



FRANK VIRTUALLY CONFESSED. CEASED TO CLAIM INNOCENCE. 



\1/HEN tho Vigilantes went into Frank's 
v " room, at the State Farm, and told hun 
they hod come for him, he did not seem 
greatly surprised, and he made no outcry. ' 

He wfis led out by four men, making no 
resistance. -if*«j*p ■■*.■**■■ 

Ho was not roughly treated. If the Sheriff 
had been in charge of the execution, the pro- 
ceedings could not havo been better con- 
ducted. 

He as'ribt bumped down the stone steps, 
aS Northern papers have stated. 

He was not "tortured" with questions, or 
in any other way. 

Twice, in the seven-hour automobile rido 
of 170 miles, ho was asked if he killed Mary 
Phngnu. 
, Ho did not answer, r ' ' ■ ■> 



Not once, in all that long rido to death, 
did he protest his innocence. 

When day overtook the Vigilantes, and 
they decided to execute tho sentence of the. 
Law two miles short of Mary Phngan's 
grave, he was again asked if ho killed her. 

Again he was mute/ 

Then he was asked if he wanted to make 
any statement, and he answered, "No!" 

Later, and as if speaking to himself, he 
. used an expression which showed that he 
preferred to die silent, rather than bring 
shame upon his peoplo. 

. A confession could not save him, and could 
only bring additional grief upon his family. 

Ho stoically closed his- lips, nnd paid the 
penalty which the Law demanded. 

He did not die protesting his innocence 



to the last, as the Northern pnpers. 'nnd the 
Hearst papers stnte, 

The most significant feature of his con- 
duct, during that seven hours" ride, through 
the dnt-kne&s nnd silence of night, wiia. that 
he did not once remonsfmle with tho Vigi- 
lantes, and did not once say to them— ns lie 
had been saying so often ' for two years — 
"I am innocent." 

He was guilty; nnd his conduct at tho 
last corroborates the official record, which I 
have carefully summarized and will present to 
tho public in YVntsoivs Magazine for Sep- 
tember. 

Thnt number, road in connection with the 
August issue, mnkes up tho record which 
will, for all time to come, provo how Big 
Money endeavored to defeat Justice in 
Georgia — and met a M'ateflvo. 



The Jeff ersonian, August 26, 1915 




Governor John Siaton hung in effigy outside Atlanta the week 

after he commuted Leo Frank's sentence, June 1915 

(Georgia Department of Archives) 




Long view of the lynching (wbjhma) 




Frontal view of the lynching 
(Joe McTyre Collection, ALphareUa, Georgia) 




Ifr&fcTF 



'&&*>?£? 




Close-up of the lynching 
(Georgia Department of Archives) 











%>*<&* 




F JB^lFti ■! ,? A-^ 






A celebration of the lynching in Marietta's town square 
(Corbis) 



HHHHHHP 

mm THE ATLANTA' CONSTIT UTION BS 



V**. XJ-VUL— Jf*. «- 



ATLANTA, Dl, WKl>KBSl>AY JrtJtKttfO, AUGUST 13, Jank-TWELVK PAOEi 



MlgJWN.STOR Y IN DETAIL 

Section of g; g Croud Waiting eo View Frank's Body 1 How Plans Were Formed 

And Put Into Execution 
Without Slightest Hitch 

THOUSANDS VIEW BODY 

Men, Women and Children March Past Cas- 
ket in Undertaking Parlors— Crowd Grows 
Threatening When Refused Permission to 
See Body— Remains Taken to Brooklyn at 
Midnight Following Services in Chapel. 

Afl*r taking bran T|*w#4fcj imrj ttiauinarti af man, wam*fi a-ml eliJiilrtii a* 'a lay 
jfi 0i4 m;4j«vikJc^ p*rLapi t,t tlnwilMrg ft Bond. tin i^iy si l" M- Fr^St Li n^# *ti 
roui[r> ti> UtooIIjtl, wrjir-o tin (oririrjJ tinr-rhti -wJL be Luhd. On the lum* train an 
Mr*. Fraili, AkiLfcrldcr llttirrnt, her lmHler^D-linr; BililiL DATdd MATT itiif arvrr.ll 
atl:'+ fekudi d! thn f.inlly. 

ALlhfllSghi ll *J* rtril aitcmjitid M tiM¥*nl ibs pnlillc from «*inj[ L?in l-rkl* if 'Jm 
taut iud, i hs iftrc-s'^cinjt niiiir* et tbo crriwd *Mca. gathered a> Lh« uitdarutdes 
parlora hrd ti lHa dNiliLnri thai !L mHitd hi b«l tq ^ilBJl ifc.6 psbljc, uudM J>»Um JU- 

Pp]L tJrtjU* Of tfa* laying of till plaf. fw Lh* rrn.jv.il nf rr.-ji fana Mll!f J-c 
t|11* and Eliatr jofceufrj, cnLlTjIjaMnrl W«Jtj 4Ji«W»d TnudiJ. 

STOWflF ROW MOB LYNCHED FRANK. 

-Til* public will rnvir Inuo U» FitallMa rf Ht 'Ji Imrti ui lejti m*B "wIm 
Utffc lain their JwH lUadi thn ez*mlW'»[ n taw tji.itll.vi been llrfp|Kd frrjEo. tiflOlty 
{Juvarnur BliMn. I wauld nn-i adrlaa EnqulilLlTA iutlifniUei 6r JuSMtfrJ In- try 'J rtTcal 
tfcita. The? u* 11 ualntaly lunu«f toother n™ h /id u wTwULcm, m Uiq mociebi 
lh«j Jnradtd tlU "Vi!* priic n. 1 ' 

J TJiii irap kill- iNwnt "I ■ fHlfH ■*! Mirk Mi 4d * WjH-iL-rf Iw 1 

E| Tlx lYiailrk-jluiB TLf*4»!' lltinKOfl. I Tf rfU IhHtMt^iif Ipiirt =.-i 
lin r=OTTTTW=n|i. rf 4tf tj«hl»* iL>nlm_rm, aP Lkr jrrvn.1 -iri prpiEiii.- 
Lbig.bl l!w|| l-tinp. l>>tn| ihrir p-jihili'ii.t ijibmi jif v(.tjikw ji M f- 




RUSSIAN rORIS ISTEPSTD PROTECT 
VffTH MAHV GUNS 1 P1E0FC0U0N 

FALL 10 GERMANS 



iii Aim Tihiru Wlicr. t?n 
Hiii'i«r L ]i Traapi 3li:i'ir I 
Dtfi-RlirS of Ks«n* . 

IIKILY FQ* XimiANi 

Nn> l3*jy««d (hf Curt 
Fflraa Wilt &f« t* Ahl* 
l^irold H Mlt'UlVnfa Lira ■ 
A^11±l ill* IriTada"- 



The Allfrt WlH-tiKUft 
Stapl* C4hiMli!ind and 
Then SUnd U*1ilnd the 



r^r;^*"M«R«siiin 



£ uyjj JftiV-j A?. S)2lo<: 



Dte.1a.Tfi 
TKtr* Arc Condhhini 
Abaut the t'rjnL Care 
WWeh Cfflniiui* TrEbme- 



LVNCHED.NDECAIUR 



iVf-TT llrini; EJcnlsiLtd ty 
Vi^ijrr^ ^i fi ,^ ll Sh^l 14 
Umb Irr M^u .ii Arr.. 
\iir-l.i.T 









HUNK LYNCHING 




HtriM* (I* i 






\:r::. '";.,; v.; .r '. ^, 7:. i {k, ™ r,ir,r &««*"* t t^' f =^ ^ -i * ^^ ir „< h . . r iri L d u^— «- «, Htadtrov*. 

... . . . . • TT™i»:li»]i hwk'i«,l([IlM. *-.,....... ... 



nrn Thtr '-fin II i iv.j— i ■>!?■ i* ■?>-<■ rtiie 11 

a ^ij w Ik B um nf Mirj PVirin. i*rti[Mi all 4Jri4 ■iiilf 

be ta Help Cwnrnlt*! W, \,i«l,im* «h~t oinniv fa, MtdtM fa ^rrrj Imt^rta b> (fat Ul't 

I FliWT FLArtHtD 

; re* ucvraB ago. 

^TH-r wsakl (in-. I|i»^k^ m..# iW ■ ,=-^is * =n II um< 

3 ~K4 ll^M 1 ! pM WWrlt" iHri f^-rcjitln! > "IrA." r^riiftii IFtHiil 
^ HI* ■{Vd'Wid ll« fikii Hid jiJrrcJ ilvc Vflfalt Il1«i, r'KMtU. 
; Ttlll m* ihr 4v »l»i Thd i.-jd:, pnlk. uirr tOHlWrJ B dH 
• riqr <kP FpLlrn n ■: L'. ■■!■ t -,^yli C , i.n 1»K Iw^owl *W IIUUUil 
lr.:.ii Vvkttt 

'llui rpzd' llg^si irJ ffai -i)| U IT )Ufto| l[4>i hip JmdH *r- 

.r;-.< ! alar-; -Hill r.'«#(i |.- ■!,,, j.;: ri ; Tn |lj U3h^[±Uit Irtlr^ 

pr.;!i W i famefl It [H< Urn ?:»Hk ■! LHH r)H FVSnHl 

'■I ETK* I* ifl!( Ml &■■■« H^dirJ iiwii Ihr: iiinitj nf iM n« 



^ h_» r; « -ju. h «jh«; ^'^'■^".r.t^pi.'Tijt 



i FtM** l!>- -.fl.i:iiiKi hUlGbirj :-. . hH* iq |.„, c . , flf (araul.- 
J IwtklT-n.ir intn s<1 -nil (J.It Ij,I .^1,. ,, n Ibtif jh.FK r i. T \f|f. 



PHOHLMEMT MAN 
DHOEVJflf AB LEADEB. 

V.rtinf. . H | bd< (■ ■ ,f<H w Wiipir«ii tin, )in UlU' 
Willie en hnr |.t r.PV, njlfj A |flfe|ei ««■ {NriTfl, A DU 
WlW bCtll «■ ri-iiU>1f 1 nAmr j- |r4u „ . a!-' tiff liHir u j '. V T-fnl 
-i' Itt irti t Sua -rit*ir1l4 m*4 pnpnfri EfUmbri. >d 



ITU <Wa trtTfl«r Htc pAhtaeh i^i «^li,> .W «iti± run. 



•"*■'' ii.' i .i---.it- : '•-! :• ii.- r .....:r . !r--. .; 

' -*n nvn Inyil, JuafUL 4tAlliaa *r,-\ ^HfnbtA They «tri 
,-i- ',iv. | ir> h"- «ftynH h 1 1 1- ii i*tt -■ triw Lb il-miqh rl |iii -[-->< l-i 

rifbul i^a^Lffi.. |ifW| f« pi l^tKifc irjib LWl M^ni ah oajr «fh4, 

"TH^r "">■ a-viniM-litf. xi mrt j* Jrirmln^ LS^fi Irulqrn 
r '"Jilil'"^^!-. 'iKIU.rx Lbtj T.Fnld »^ ru m\m \t ^Ihuiui k r it lmFifti( tray 'iyp 



The Atlanta Constitution, August 1 8, 1915 



Purposely unidentified man holding 
a photograph of the lynching 

and an oak branch at Mary Phagan's 

grave, summer 19J5 

(Marietta Museum of History) 




Frank's casket being removed from his parents 1 home, August 20, 1915 

(Corbis) 




Lucille Frank, near collapse, being escorted to the funeral 
(Coibis) 



■ .;■ --'..-.■- 1«s.»« '-■*■<:} V,--C^>-ro' ^Sa 







- -\ gjB3 



Anti-lynching editorial cartoon, Atew tor* WorW, August 18, 1915 




Herbert Clay shortly before his death, summer 1923 
{Courtesy Eugene Herbert Clay, Jr) 




TTTObr-3 



Judge Newt Morris (left) and H. N. Randolph, Mc Adoo 

delegates, on a cruise of the New York harbor during the 1924 

Democratic Party convention (Corbis) 




Lucille Frank, circa 1950 

(wujhma) 




Tom Watson shortly before his death 

(Southern Historical Collection, The Library of the 

University of North Carolina at Chapel Hill) 




William Smith/The Revenant," circa [945 
(Courtesy Walter Smith) 



■ ■ 



6- 



1 a/ A V, f i 






Smith's deathbed note, February 1949 
(Courtesy Charley Smith) 




Smith with prospective students at the Fort Smith School, circa 1946 
(Courtesy Walter Smith) 



APPEALS IN AND OUT OF COURT 367 

From a financial standpoint, the most important Northern Jew to take up 
Frank's cause in the wake of the November meeting at Temple Emanu-El 
was Albert D. Lasker. The Chicago-based advertising magnate's Lord & 
Thomas agency (predecessor to Foot, Cone & Belding) handled accounts 
ranging from Anheuser-Busch to Goodyear tires. Exceptionally innovative 
(Lasker essentially invented the idea of orange juice, which prior to his 
groundbreaking campaign for Sunkist oranges was a novelty item), with a 
knack for writing catchy copy ("The Grains that are shot from guns," 
boomed Lasker's slogan for Quaker Oats), Lord & Thomas was an industry 
pacemaker. Its billings for 191 2 totaled $6 million. 

As sole owner of the agency, the 33-year-old Lasker had built a fortune 
that enabled him to commission an enormous mansion on the grounds of 
Chicago's suburban Lake Shore Country Club, a center of Jewish social life. 
Yet Lasker was a restless soul. He also possessed a strong sense of his 
Judaic heritage. Though Texas-reared (his father was a Confederate vet- 
eran), he identified with a German uncle who as a member of the Reichstag 
during the nineteenth century was a vocal early opponent of the prejudicial 
treatment of Jews. Noted the advertising baron's biographer: "He detested 
anti-Semitism." 

In late autumn, Lasker offered to do what he could to assist Frank. Qui- 
etly, he contributed $1,000 and arranged for donations in equal amounts 
from his father and from his close friend and fellow Lake Shore member 
Julius Rosenwald, the chairman of Sears Roebuck & Company. In mid- 
December, Leo Frank wrote Lasker, offering not just his gratitude but 
boldly expressing his faith in the battle's ultimate outcome: 

I thank you and your father, as well as Mr. Rosenwald, for the help you 
have given my cause. 

My attorneys and I feel confident that the Supreme Court will order a 
new trial on the showing of errors committed by the court below, and that 
this victory will be but the inception of a long line of successes which ulti- 
mately will spell my complete and acknowledged vindication. 

During this same period, Adolph Ochs, responding to the appeals of 
Marshall, Lasker and Rabbi Marx— who upon making a second trip to 
Manhattan got in to see the publisher— committed the New York Times 
to Frank's cause. As Garet Garrett put it: "When Mr. O. returned from 
Europe, the same Georgia people convinced him of Frank's innocence." 
Not that Ochs was prepared to order up headlines. For all involved, there 
were too many risks. However, if and when the calculus changed, he and his 
great newspaper stood ready. 



368 AND THE DEAD SHALL RISE 



Shortly after 9 a.m. on Monday, December 15, Reuben Arnold rose to his 
feet in the state capitol chambers of the Georgia Supreme Court and initi- 
ated yet another round of oral arguments. "Your honors would not believe 
that such inconsequential and irrelevant evidence could be used to damn a 
defendant," he told the six-judge panel, repeating the defense's assertion 
that the case against Leo Frank was an unconvincing hodgepodge. Hugh 
Dorsey, of course, took the opposite view, maintaining that the evidence 
was strong and that the trial had been fair. Declared the solicitor: "If there 
were errors, and I doubt there were, they were minor." Luther Rosser 
reemphasized the contention that Jim Conley's sexually explicit testimony 
was inadmissible. "The jury may have thought they were writing 'guilty of 
murder,' " he roared, "but your honors, what they wrote in reality was 
'guilty of perversion.' " The lawyers went on like this for the better part of 
two days, but when all was said and done, they had shed little light on the 
issues under consideration. "There was nothing much gained by the super- 
abundance of eloquence released before the high court," observed the 
Georgian's James B. Nevin. "Neither side exactly festooned itself with 
glory." In part, such reviews stemmed from the fact that Arnold and the oth- 
ers were talked out. More to the point, however, was an awareness that the 
moment for rhetoric had passed. As Nevin noted: "The court will proceed 
to its findings upon the written record and not otherwise." 

The stack of documents that Georgia's Supreme Court justices— Samuel 
C. Atkinson, Marcus Beck, Beverly Evans, Joseph Henry Lumpkin, M. 
Warner Hill, and the chief, William D. Fish— would review in reaching their 
decision included the defense's Bill of Exceptions, the state's Brief of De- 
fendant in Error, and the Brief of Evidence, a 600-page digest of the trial 
testimony approved by both camps. 

For the most part, the Bill of Exceptions was simply a leaner version (103 
instead of 115 grounds) of the amended motion. Here again were the 
charges of bias against Henslee and Johenning and the allegations that the 
outbursts during the trial had influenced the jury. Here again was a critique 
of Dorsey's closing argument. And here again was the assault on Conley's 
controversial testimony. There was, however, a critical new element, and it 
not surprisingly involved Judge Roan's admission of uncertainty as to 
Frank's guilt. "The words of his judgment betray on his part a mind wholly 
inconsistent with the settled conviction which a trial judge ought to possess 
in denying a motion for a new trial," the document averred. "From timidity 
or from misapprehension as to the law," Roan had "failed to exercise that 
discretion which it is his solemn duty to exercise." What he had done, 



APPEALS IN AND OUT OF COURT 369 

though, was to articulate his misgivings, and according to precedents in such 
cases, the higher court "has repeatedly reversed the court below." 

The Brief of Defendant in Error opened by taking vigorous issue with 
Rosser and Arnold's thesis that Judge Roan's expression of doubt provided 
sufficient reason for granting Frank a new trial. "It is not the office or func- 
tion of a Bill of Exceptions to carry the views of the judge," the document 
declared, citing precedents of its own. "We submit that it would be as dan- 
gerous to permit a judge to impeach the integrity of his official finding after 
the judgment is concluded as it would be to permit the jury, after having 
been discharged, to impeach its own verdict." There followed a flurry of 
similarly sharp responses to the charges of bias against Henslee and Johen- 
ning, the claims that the courtroom demonstrations had influenced the jury 
and the allegation that Dorsey's argument had frequently strayed out of 
bounds. Trenchantly worded as these assertions were, those upholding the 
admissibility of Conley's explicit testimony were more trenchant still. First, 
the brief held that the Negro's charges were vital to an understanding of 
Mary Phagan's murder, stating: "Our contention in this case is that Frank 
was prompted to assail this girl because of his lasciviousness." And it wasn't 
ordinary lasciviousness. In an effort to prove that perverse sex crimes were 
the province of "a man of intelligence" (as opposed to blacks), the brief 
quoted from a standard text on deviancy, Dr. Richard Von Krafft-Ebing's 
Psychopathia Sexualis. To wit: "It is shown by the history of Babylon and 
Nineveh and also by the mysteries of life in modern capitals that abnormal- 
ity of the sexual functions proves to be frequent in civilized races." 



Over Christmas and on through the first weeks of the new year, Georgia's 
Supreme Court justices studied the two sides' conflicting contentions. On 
January 7, Frank's lawyers submitted a Reply Brief for Plaintiff in Error 
that attempted to rebut much of what the state had asserted, particularly its 
claims regarding Roan's publicly stated misgivings and Conley's sexual 
allegations. Though Dorsey chose not to respond to this latest salvo, the 
judges reacted as well they might, postponing any ruling for a month. 

During the cold, short days of Atlanta's cold, short winter, the Supreme 
Court deliberated and the opposing camps waited until finally, at 1 1 a.m. on 
February 17, the judges issued a 142-page decision denying Frank's appeal 
by a four-to-two vote. Writing for the majority, Justice Atkinson dismissed 
the charges of prejudice against Henslee and Johenning, contending that 
"unless it appears there has been abuse of discretion," the matter rested 
with the trial judge. Similarly, the court found that the various outbursts 
punctuating the proceedings did not impugn their fairness. "The general 



370 AND THE DEAD SHALL RISE 

rule," Atkinson asserted, "is that the conduct of spectators will not be 
ground for a reversal of judgment, unless a ruling upon such conduct is 
invoked from the trial judge at the time it occurs." As for Conley's explicit 
testimony, the majority ruled that it was "material and relevant" in that it 
"tended to show a practice, plan or scheme on the part of the accused," 
adding pointedly: 

From the condition of the body it might have been inferred that the per- 
son who did the killing sought to have a sexual relation, natural or unnatu- 
ral, with the deceased . . . Conley said that the accused said, "I ain't built 
like other men." It was relevant to explain the expression above quoted to 
show previous transactions of the accused, known to him and to witness, 
which indicated that his conduct in sexual matters differed from that of 
other men. 

Which left Roan's statement of doubt. Wrote Atkinson: "This court will not 
interfere because of the trial judge's oral expression as to his opinion. His 
legal judgment expressed in overruling the motion will control." 

The news that he had been dealt yet another setback reached Frank 
shortly before noon in what had become the usual way— Rabbi Marx car- 
ried it to his cell at the Tower. 

In a statement relayed to the press by Marx early in the afternoon, Frank 
expressed shock that his appeal had been denied. He was joined in this 
reaction by Rosser and Arnold, who, though they took hope from the dis- 
sent by Chief Justice Fish and Marcus Beck (the two wrote that Conley's 
allegations of sexual impropriety were "calculated to prejudice the defen- 
dant in the minds of the jurors and thereby deprive him of a fair trial"), 
were uncertain how to proceed. Reported the Constitution: "No fixed plans 
have been made by Frank's attorneys for further attack." 

Meantime, Jim Conley, who was in the Tower awaiting trial as an acces- 
sory after the fact to murder, told the press: "I knew how it would be, and 
Mr. Frank knew it, too." Yes sir, he added, "the 'Ole Marster' up in heaven 
was looking down." 



FOURTEEN 



gfiraess 



As Leo Frank sat in his cell in the Fulton County Tower during 
the first week of March 1914, he found himself often thinking of 
the Swiss Alps and something that had happened to him there 
while touring Europe the summer after graduating from Cornell. It was an 
August morning in 1906, and Frank had made the 6,995-foot hike up Mount 
Pilatus in pursuit of its view of Lake Lucerne and the surrounding country- 
side. Yet no sooner had he reached the top than a storm descended, cutting 
off visibility. For an anxious several hours, the earth itself appeared to have 
vanished. Eventually, however, skies cleared, revealing not just the lake and 
the checkerboard of fields and villages spreading out from it but a glimmer- 
ing rainbow that "seemed to reach across the world." Recalling the day 
from the perspective of his present circumstances, Frank saw in its move- 
ment from darkness to light a metaphor for the movement beginning to 
take place in his case. "My trial, my accusation, my rebuffs have been the 
clouds," he told a visitor. "The developments of the past few weeks are the 
rainbow of hope. And I am confident that the sun is to shine." 

That less than a month after his appeal had been rejected by the Georgia 
Supreme Court, Frank could envision anything other than the lengthening 
shadow of the gallows attests to the fact that the intervening days had 
indeed witnessed a series of astonishing occurrences— all of them favorable 
to the defense. 

The turnaround had started on February 20, when the Atlanta Journal 
broke the news that the strands of hair discovered on a National Pencil 
factory lathe during the early phases of the Phagan murder investigation 
had not come from the victim's head. Even more startling, the paper also 
reported that Solicitor General Hugh Dorsey had been notified of this 
piece of intelligence prior to Frank's trial but had withheld it from opposing 
counsel. As Dr. Henry F Harris, who had microscopically compared the 
hair found at the plant with samples taken during his autopsies of little 
Mary's body, told the Journal's Harllee Branch: "When I informed the solic- 
itor that the two specimens of hair were not the same he simply remarked 
that he would let the matter end there." These revelations prompted an 
instantaneous reaction from Luther Rosser and Reuben Arnold, who in a 



37 2 AND THE DEAD SHALL RISE 

joint statement accused Dorsey of prosecutorial misconduct. "He knew the 
truth and in spite of his knowledge urged upon the jury that this hair was 
evidence of Frank's guilt," the lawyers charged, adding: "The solicitor, in 
his zeal, misconceived his duty." Clearly caught out, Dorsey had tried to 
limit the damage, contending that Harris was merely offering an "opinion." 
Moreover, he asserted that the doctor's assessment notwithstanding, "the 
state's case had lost none of its strength, since it was not on such trifles that 
it was based," the hair being just "another addition to the mass of cumula- 
tive evidence against the defendant." 

Hard upon the Journal's exposure of Harris's finding, Frank's lawyers— 
revealing that they had long been awaiting such an opportunity —released a 
barrage of headline-making retractions by individuals heretofore firmly 
aligned with the state. The first of the disavowals to hit the papers came from 
Albert McKnight, the husband of Leo and Lucille's Negro cook, Minola, 
who now swore that his trial testimony had been fabricated. In a notarized 
affidavit made for C. W. Burke, a private detective working for Rosser, Mc- 
Knight declared that at the behest of his employers at Beck & Gregg Hard- 
ware—who like so many others had been angling for the rewards offered in 
the slaying's aftermath— he had concocted his tale regarding Frank's failure 
to eat lunch the day of the crime and subsequent hasty departure from 
home. The truth, he warranted, was that he "did not see Mr. Leo M. Frank at 
any time or place on Saturday, April 26, 1913." At last, McKnight had con- 
ceded what his wife had maintained both before and after being jailed by 
Dorsey, in the process casting renewed doubt on the prosecution's theories 
regarding Frank's activities the afternoon of the murder. 

The defense also made public an affidavit by erstwhile madam Nina 
Formby renouncing her damaging May 1913 deposition to the Atlanta 
police alleging that Frank was not only a patron of her establishment but 
had called on the day of the killing seeking a room in which to deposit Mary 
Phagan's body. Quite to the contrary, Formby announced, "Leo M. Frank 
had never been to my house. There had been no telephone conversation 
between Mr. Leo M. Frank and me." She said she had been coerced into 
swearing falsely by Detectives W. T Chewning and J. N Norris. Though 
Formby was, of course, regarded as an untrustworthy character— which was 
why Dorsey had kept her off the stand in August— her about-face resur- 
rected misgivings regarding the methods investigators had used in collect- 
ing other allegations. As Frank himself would soon ask reporters: "If they 
were at such pains to make out a slanderous charge to turn opinion against 
me, is it not reasonable to assume that they would go even further in fram- 
ing up evidence for use in the trial?" 

Rosser and Arnold next unveiled a sweeping recantation by the loqua- 
cious bratling who had introduced the issue of sex into the case. In a 3,500- 



BRIGHTNESS VISIBLE 373 

word affidavit, George Epps proclaimed: "I now state that at both the coro- 
ner's inquest and the trial of Leo Frank I swore falsely. I now state that I was 
persuaded to give the false testimony in both of the before-mentioned hear- 
ings by Detective John Black. He told me, 'You go ahead and tell it just like 
I tell it.' " Bluntly put, Epps was accusing headquarters' lead investigator of 
not only having directed him to commit perjury but of having invented the 
charge that little Mary, in response to Frank's advances, had sought his pro- 
tection. And if that weren't enough, there was this: Following the inquest, 
Epps said he had tried to inform Dorsey that his story was untrue. Yet the 
solicitor, he maintained, cut him off, snapping: "Just stick to that." For nearly 
a year, the boy added, he'd been a good soldier, although he'd felt "sorry" 
and was "glad of the chance to explain it and relieve my mind." Splashed 
atop Atlanta's front pages (testimony doctored by black, boomed the 
Georgian), Epps's unexpected change of tune knocked the wind out of 
Dorsey. After denying that his young witness ever gave him reason to think 
he was lying, the solicitor declined further comment. 

With the publication of George Epps's retraction, the state had suffered 
another severe blow— the fourth in two weeks. Little wonder that Leo 
Frank's spirits were rising. Yet the apparent crumbling of evidence ex- 
plained only part of it. The news from outside Atlanta during this brief 
period had given the condemned man even more reason to take heart. 

The headline atop page three of the February 18 editions of the New 
York Times could not have been more judicious: split court denies new 
trial to frank. However, the four columns of underlying text, which 
opened with the story's subject professing his innocence and then provided 
a summary of the case thus far, sent an unmistakable signal. As Adolph S. 
Ochs's confidant Garet Garrett noted in his diary, the publisher had at last 
"committed the Times to a campaign of righteous publicity." 

"Crusade" might have been a better word for it. In the following days, 
the Times gave front-page treatment to every significant development in 
the story, evidence for frank hidden, say counsel, declared the 
above-the-fold topper on February 21. retracts evidence that doomed 
frank, pronounced another on February 23. woman admits she lied 
about frank, proclaimed still another on February 26. And on and on 
until by March 6 (the date the condemned man's account of his experience 
on Mount Pilatus appeared), the paper had run 25 articles on the case (nine 
on page one), elevating what had been a drama little known beyond Geor- 
gia's borders into a topic of national import. 

The Times's initial coverage had also spelled out what the country 
should think about the Frank affair. Though the paper dutifully reported 
much of the state's evidence, its pieces by and large read as if they'd origi- 
nated from within the defense camp. Which, in many instances, they had. 



374 AND THE DEAD SHALL RISE 

On several occasions during this period, Ochs essentially turned over his 
news columns to Frank's lawyers, printing lengthy interviews unmediated 
by any skepticism and unencumbered by a word from the other side. 

On March 2, beneath the front-page headline frank convicted by 
public clamor, the Times provided Herbert Haas free rein to recapitulate 
the entire affair from Frank's point of view The lawyer, who by this junc- 
ture had assumed control of the defense's fund-raising efforts and was in 
New York staying, at the Knickerbocker Hotel, took full advantage of the 
moment. After lambasting the Atlanta police for the manner in which they 
had conducted the investigation and scoring Dorsey for the way in which he 
had run the prosecution, he dismissed his client's chief accuser. "Conley had 
been arrested seven times between 1904 and 1912 for disorderly conduct. 
Fifty or sixty employees of the factory testified that they would not believe 
him under oath." Then he declared: "Frank's friends are absolutely con- 
vinced of his innocence. That he is the victim of a vile conspiracy, and that 
he is a man of the highest integrity and character, and that his innocence 
will ultimately be proved to the world there is not the slightest doubt." 

On March 4, the Times accorded Luther Rosser— who it so happened 
was also in New York, conferring, as he phrased it, "with certain persons 
who are interested in the Frank case"— the same privilege it had given 
Haas. And like his counterpart, Rosser lit into the police and Dorsey before 
roughing up their star witness. "As for Conley, it would have been impossi- 
ble to pick out a negro lower in the social scale." Then the condemned man's 
lead counsel— responding to the question "Why was Frank convicted?"— 
articulated what for most Americans would become the defining issue: 

The Jewish population of Atlanta is not large. Frank came to Atlanta a 
stranger and engaged in a new enterprise. He knew hardly anybody who 
was not of his own religion, being closely occupied with his business, and 
this fact rather counted against him. I really believe if Frank had been the 
son of a reputable Gentile, he would never have been arrested. 

The New York Times's entry into the fray had, of course, galvanized the 
defense. Adolph Ochs was in the fight for the duration. But for all of that, it 
was another northern Jew's decision to take up the cause in earnest that 
had produced the greatest elation, convincing Leo Frank that exoneration 
would indeed be his. 

Sometime around the first of March, the Chicago advertising magnate 
Albert D. Lasker had stepped off a train at Atlanta's Terminal Station. 
Owing to an innate abhorrence of personal notoriety and an awareness of 
the need, in this instance, for discretion, Lasker had insisted that no one 
except those connected with the defense be told he was coming. The news- 



BRIGHTNESS VISIBLE 375 

papers never mentioned he was in town. His presence, however, made itself 
immediately felt when on March 4, the renowned private detective William 
Burns— the same Burns whose agency had briefly taken up the inves- 
tigation nearly a year before— arrived at Terminal Station and to a mob 
of reporters and photographers declared: "I am in the Frank case to the 
finish." Predictably, Burns's announcement set off a frenzy in the press. 
Roared the Georgian's front-page headline: detective promises deci- 
sive probe. And just as predictably, Lasker kept his name out of print, cir- 
culating the story that the condemned man's friends Milton Klein and Dr. 
Benjamin Wildauer had hired Burns. But the truth was that Lasker had 
engaged the investigator and paid his $4,500 retainer, and for the next 
week, Lasker, according to an associate, would "work day and night direct- 
ing detectives and securing affidavits" on Frank's behalf. 

From the defense's perspective, Lasker's appearance in Atlanta was an 
answered prayer— and not just because he had agreed to provide the fund- 
ing for Burns. He had also agreed to put the same promotional genius that 
had made Quaker oats and Budweiser beer household names to use in con- 
vincing the public of Frank's innocence. If ever there was a time such savvy 
might matter, it was now, for as was becoming clear, the defense was prepar- 
ing to launch a war to overturn the condemned man's conviction. The pri- 
mary legal weapon: an extraordinary motion for a new trial. Though there 
could be no doubting the intensity with which the state would contest the 
motion, Lasker expected victory. As an aide to the Sears, Roebuck chair- 
man Julius Rosenwald— who had, of course, donated money to the effort 
months before— put it in an early-March update: "Mr. Lasker's secretary, 
Miss Langan, told me, in a guarded way, that Mr. Lasker was very hopeful of 
a satisfactory outcome." 



These, then, were the events that had convinced Leo Frank that though his 
dilemma remained unchanged, everything was different. Never was the 
alteration in mood more apparent than on the morning of March 7, when 
the condemned man emerged from the Tower to attend what by every right 
should have been a sobering proceeding. 

The setting was the Thrower Building courtroom of Judge Benjamin H. 
Hill. Here, Hugh Dorsey would ask the lower court, which was now in 
receipt of the mandate from the Supreme Court returning the case to its 
jurisdiction, to set a new execution date. Yet from the moment that Frank— 
tan mackintosh draped over his shoulders, derby in hand— strode into the 
crowded chamber, the defense's fresh-minted optimism filled the air. For 
one thing, Reuben Arnold, exhibiting the certainty he and Rosser shared 
regarding the extraordinary motion's prospects, announced that he would 



376 AND THE DEAD SHALL RISE 

forgo the de rigueur but usually futile request for clemency. More telling 
was what occurred once the preliminary business was done and Hill 
inquired if any other issues remained to be addressed. At this, Arnold said 
simply that his client wished to make a statement, whereupon the judge 
nodded his assent. 

Approaching the bench, Frank began by diplomatically asking Hill not 
to take his remarks personally. "I well know," he said, "that your honor has 
naught to do with the vicissitudes of my case." Then, with a confidence and 
verve that suggested he intended to use the forum to make what amounted 
to the opening argument in his battle for a new trial, the condemned man 
declared: 

Law, as we know it, your honor, is but the expression of man's legal 
experience. It is but relative. It tries to approximate justice, but being man- 
made is fallible. In the name of the law many grievous errors have been 
committed— errors that were colossal and irretrievable. I declare to your 
honor that the state of Georgia is about to make such an error. 

From this philosophical start, Frank turned to the specifics of his own 
dilemma. Arms raised, voice gaining in strength, he asserted: 

Your honor, an astounding and outrageous state of affairs obtained 
previous to and during my trial. On the streets rumor and gossip carried 
vile, vicious and damning stories concerning me and my wife. These 
stories were absolutely false and did me great harm as they beclouded and 
obsessed the public mind and outraged it against me. 

From a public in this state of mind, the jury that tried me was chosen. 
Not alone were these stories circulated on the street, but to the shame of 
our community, be it said, these vile insinuations crept into my very trial. 

The virus of these damning insinuations entered the minds of the twelve 
men and stole away their judicial frame of mind and their moral courage. 
The issue at bar was lost. The poison of the unspeakable things took its 
place. 

With that, Frank squared his shoulders and in a tone at once resolute and 
resigned proclaimed: 

If the state and the law will that my life be taken as a blood atonement 
for the poor little child who was ruthlessly killed by another, then it 
remains for me only to die with whatever fortitude my manhood may 
allow. 



BRIGHTNESS VISIBLE 377 

But I am innocent of this crime. And the future will prove it. 
I am now ready for your honor's sentence. 

The unexpected eloquence of Frank's statement so jolted those in the 
courtroom that initially Hill seemed at a loss on how to continue. But after 
a moment's hesitation, the judge picked up a document headed "State of 
Georgia versus Leo M. Frank, No. 9410" and began to read aloud: 

It appears that the defendant, Leo M. Frank, was on August 26, 1913, 
convicted of murder and thereupon duly sentenced by the order of this 
court to the punishment of death. 

It is here and now ordered and adjudged that the sheriff of Fulton 
County be, and he is hereby, commanded to do execution of such sentence 
aforesaid on the 17th day of April, 1914. 

"That is my birthday," Frank whispered upon hearing the date he would 
turn thirty so designated. But otherwise, he seemed undismayed. This was 
an individual previously all but unknown to Atlantans. Never again would 
he be called "The Silent Man in the Tower." 



From this moment on, Leo Frank would speak regularly to local reporters 
while flooding national newspapers with written statements. Regarding the 
zeal with which Dorsey had tried him, he told the Georgian: "It is a terrible 
thing to suggest that a public official would advance his prestige at the 
expense of an innocent man's neck. And yet you can see how it is. There is 
not much glory in convicting a negro of a sensational crime." Pointing to a 
detail that he believed exonerated him, he informed the Constitution: "If I 
had been guilty, nothing on earth would have induced me to have revealed 
the fact that I had seen and talked with Mary Phagan in my office a few sec- 
onds before the prosecution claims I killed her. Would the man who killed 
Mary Phagan have freely and voluntarily stated that he saw her and talked 
with her just a few moments before she was supposed to have been killed?" 
And as for Conley, he told the Journal: "I am obliged to leave it to the intel- 
ligence and fair-mindedness of the community whether his successive per- 
juries, his motive to lie, the most powerful motive that could actuate a 
human being, and the utter improbability of his story does not render it 
unworthy of belief." 

Coordinating these sallies was Albert Lasker, who covered the costs of 
circularizing Frank's remarks outside Atlanta as well as endorsed the slo- 
gan that soon tied them together: "The Truth Is on the March." After trying 



378 AND THE DEAD SHALL RISE 

the line out as a tag for his written pronouncements, the condemned man 
began slipping it into interviews, and soon enough, not only was he using it 
much as advertisers used the catchphrases Lasker created for them, so were 
partisans elsewhere. A rallying cry had been born. And what made the cry 
effective was that circumstances continued to go Frank's way. 

Frank's lawyers chose this juncture to unleash another flurry of news- 
worthy affidavits. The first came from young Helen Ferguson. In a statement 
made for C. W. Burke, the factory worker asserted that on the Saturday prior 
to Mary Phagan's murder, Jim Conley had accosted her in the plant lobby— 
the spot where Rosser and Arnold maintained the crime had occurred. "He 
was drunk— seemingly as drunk as could be," she swore. "I saw a whisky bot- 
tle in his hip pocket. He was staggering. His eyes looked queer and he didn't 
seem to know what he was doing. Then he came over toward me menacingly 
and I drew back, and as he pushed nearer me, I jumped to the stairs and ran 
as fast as I could." Though the Ferguson girl stood by her trial testimony 
alleging that Frank had thwarted her effort to pick up little Mary's pay the 
afternoon before the killing, the press played her declaration as a defense 
victory. Proclaimed the New York Times's page-one headline: says conley 

MOLESTED HER. 

No sooner had the Ferguson triumph hit the newspapers than Frank's 
lawyers released a pair of affidavits that Leonard Haas maintained would 
form "the strongest connecting links" in the extraordinary motion. As Ethel 
Harris Miller and Maier Lefkoff — both familiar figures in Atlanta's Jewish 
community but neither previously involved in the case— told it, they were 
walking down Whitehall Street around 1:10 the afternoon of the murder 
when Mrs. Miller saw Frank. "I spoke to him," she swore, "and Mr. Frank 
bowed and spoke to me, tipping his hat." The claim bolstered the superin- 
tendent's alibi. Hence Haas's enthusiasm. "The statements of Mrs. Miller 
and Mr. Lefkoff prove that Frank was not at the factory at the time the 
Conley negro states positively that they were disposing of the body," he 
declared. To this assessment, Frank happily concurred, telling reporters that 
he remembered meeting Mrs. Miller that April day, then adding: "The truth 
continues on the march." 

Just how determined the defense was to establish its version of the truth 
became clear during the second week of March when a glossy eight-page 
pamphlet entitled "Some Facts about the Murder Notes in the Phagan 
Case" started appearing in the mailboxes of Atlanta's registered voters. 
Penned by the lawyer, Henry A. Alexander, who had recently been added 
to the defense team by Albert Lasker, the pamphlet —which was illustrated 
with crisply printed photographs of the documents under consideration— 
constituted the opening salvo in a two-prong attack intended to prove that 
not only did the contents of the enigmatic notes point to Jim Conley as their 



BRIGHTNESS VISIBLE 379 

author and therefore little Mary's slayer, so did the very paper upon which 
they were written. 

The murder notes had until now received scant critical attention. Save for 
Hugh Dorsey's assertions during his closing argument at Frank's trial that 
the proper usage of the word "did" in the notes indicated that a white man 
had composed them, and Arnold's comments to the contrary during the 
appeal, their strange syntax and lexicon had gone unaddressed. Alexander's 
study began to change all that. The lawyer had grown up with Southern 
blacks and was a student of their expressions and folklore. He had read and 
reread the notes, eventually focusing on a distinctive locution that appeared 
near the top of the one jotted on lined white paper: "he said he wood love 
me land down play like the night witch did it." To Alexander's thinking, the 
term "night witch" had been misunderstood from the start, when just after 
Mary Phagan's body was discovered, the responding officers had read the 
notes aloud to Newt Lee, who according to the police had replied, "Boss, 
that's me." Out of that exchange, the lawyer believed, had arisen the erro- 
neous conclusion that the communiques had been intended to implicate the 
night watchman— a purpose later easy to impute to Frank— when in fact, as 
he saw it, they had been intended to point in an altogether different direc- 
tion. Alexander argued that the notes did not refer to Lee at all; they 
referred instead exactly to the figure named— "the night witch," a wispy 
hoodoo haint. "It seems to the writer of this article," Alexander contends in 
his pamphlet's key passage, "that in this expression there is disclosed a piece 
of superstition characteristic of the negro, and totally foreign to a white 
man. The idea that the girl was killed by a night witch, or, as the note 
expresses it, that the iong tall black negro' would 'play like the night witch 
did it' is inconceivable as the thought of a white man." 

Alexander's provocative interpretation struck a chord with many Atlan- 
tans. (A local pastor later wrote: "We had an old Negro woman working for 
us as cook and I asked her one day, 'Rebecca, what do colored people mean 
by night witch?' She replied, 'When children cry out in their sleep at night it 
means the night witches are riding them, and if you don't go and wake them 
up, they will be found dead the next morning.' ") Yet persuasive as the 
lawyer was on the matter, his reasoning was in the end theoretical. Which 
was why what came next was crucial, for it was not theoretical in the least. 

NEW EVIDENCE TO SHOW NOTES WERE WRITTEN IN THE BASEMENT, 

boomed the front-page headline over the Journal's account of the second 
phase of Alexander's work, which he presented to reporters in person. 
After scrutinizing his pamphlet's high-quality reproductions and instigating 
a subsequent probe of factory records, the lawyer announced he had deter- 
mined that the yellow preprinted National Pencil Company order sheet 
upon which the longest of the notes was inscribed not only bore the tracings 



380 AND THE DEAD SHALL RISE 

of a purchase order issued years before Mary Phagan's death but that the 
order had been made out by a mechanic who'd quit his job in 1912 and 
whose files had been carted to the cellar. Elaborating on the basis for these 
conclusions, Alexander cited several newly legible details. For one, in the 

space marked "Order No. " appeared a smudgy "1018," which further 

investigation had revealed corresponded with the number for a purchase of 
machine steel made from the Cotton States Belting Company in September 
1909. For another, across the bottom of the sheet could be seen the impress 
of a partial signature belonging to Henry F Becker, the former employee 
who had tendered the order. Alexander also asserted that the sheet upon 
which this note was written contained another telltale clue, which had 
always been apparent but had gone unappreciated. To wit: The dateline in 

the upper right-hand corner read "190 ," whereas the printed sheets in use 

at the time of the crime had been updated to read "191 ."Taken together, 

the lawyer concluded, these physical facts gave the lie to that part of Con- 
ley's testimony in which he claimed that the paper upon which he'd jotted 
the notes came from a pad kept in Frank's desk. What, then, had occurred? 
"The simplest explanation and the one which seems correct from every log- 
ical viewpoint," declared Alexander, was that the pad— like everything 
belonging to Becker— "was taken to the basement," remaining there until 
April 26, 1913, when "it was found by the negro and used by him to write 
the note through which he hoped to throw the blame on another." 

Alexander's contentions regarding the murder-note paper produced 
euphoria in the defense camp. And as was now his wont, Frank immediately 
made himself available to reporters, proclaiming: "They will have to change 
Conley's statement again if they are to get around this. They will have to get 
him to say that instead of reaching in my desk and getting out a pad, I went 
down into the basement and brought that old pad up that bore Becker's 
duplicates and had him write on that." Then, more soberly, the condemned 
man elaborated upon Alexander's conclusions, averring that "none of 
Becker's old duplicate pads was ever in my office." Yet in the end, Frank 
could not suppress his glee. "I hope Solicitor Dorsey rests as easily in his 
bed tonight and sleeps as soundly and as free from worry as I shall. I have 
never felt more confident of ultimate acquittal than I do right at this 
moment." 

How the defense could at this stage have been any better positioned 
would have been hard to imagine, but even as Frank was rejoicing over 
Alexander's deductions, a meeting was under way across town at the 
Atlanta Journal whose outcome would provide a still greater boost. The ses- 
sion, which took place in the office of the paper's editor and publisher, 
James R. Gray, had been requested by Harllee Branch. The reporter had 



BRIGHTNESS VISIBLE 381 

been on the Phagan story since long before breaking the news regarding 
Dr. Harris and the misrepresented hair evidence, not only covering the trial 
but in tandem with Harold Ross conducting the May 1913 interview with 
Conley that prompted Hugh Dorsey to quarantine his star witness. During 
this protracted involvement, Branch had reached several disturbing conclu- 
sions, foremost among them that the jury had convicted an innocent man. 
He had also decided that, like everyone who had written about the case, he 
had failed to exercise sufficient restraint and was hence partially culpable in 
the result. "I had a feeling of personal responsibility," Branch would recall 
half a century later. "We'd printed all this stuff." Which was what drove him 
to seek out his boss. "I thought it was my duty to go and call Mr. Gray's 
attention to this," he said. "I knew it was unusual for a newspaper to step in 
while a motion was pending, but I thought that we— somebody— should 
come out for what was right, fair and just and demand this man have a new 
trial. Mr. Gray listened to me patiently and interestedly, and then he said, 
'Harllee, let me think over that tonight.' He indicated to me that he himself 
had misgivings, that we'd muffed the ball." 

By the next day, Gray— whose paper was represented, of course, by 
Reuben Arnold— had made up his mind. "He told me," said Branch, "he'd 
thought it over, came to the conclusion I was correct, and regardless of the 
effect on the Journal the Journal was going to come out for a new trial." 

On March 10, beneath the headline "Frank Should Have a New Trial," 
the sheet that Covered Dixie Like the Dew lent its voice to the con- 
demned man's cause. The Journal's position was essentially this: The mur- 
der of Mary Phagan— "a young girl just budding into womanhood"— had 
so unhinged Atlanta that for the better part of a year, its populace lost the 
ability to think clearly. "A degree of frenzy almost inconceivable" had led 
the city to demand a scapegoat, and when Conley— "an irresponsible 
drunken negro, a man who would not have been believed under other con- 
ditions"— offered up Frank, the public suspended disbelief. By the time 
judicial proceedings began, the "fury" was such that an unbiased adminis- 
tration of justice was impossible. Lest his readers doubt this claim, Gray 
recreated the scene: 

The atmosphere of the courtroom was charged with an electric current 
of indignation which flashed before the very eyes of the jury. The court- 
room and streets were filled with an angry crowd ready to seize the defen- 
dant if the jury had found him not guilty. Cheers for the prosecuting 
counsel were irrepressible in the courtroom throughout the trial and on 
the streets demonstrations in condemnation of Frank were heard by the 
judge and jury. 



382 AND THE DEAD SHALL RISE 

Frank's execution, after conviction under such "indescribable conditions as 
these," would, the editor argued, "amount to judicial murder." As a conse- 
quence, there was only one right course of action: 

In the name of Justice and in the name of the good people of the State 
of Georgia, who believe in fair play, who stand for the enforcement of law 
and the punishment of crime, after legal conviction, let this man be fairly 
tried. If he is guilty, he will be convicted again. 

The publication of the Journal's editorial sparked a far greater reaction 
than Branch or Gray could have anticipated, emboldening people who 
might otherwise have remained on the sidelines to enter the fight. In the 
days immediately afterward, letters voicing support for Frank poured in 
by the scores. Predictably, most of them came from Atlanta patricians. 
F J. Paxon, the proprietor of the city's second largest department store, 
Davison-Paxon, leaped to the ramparts. As did Forrest Adair, a real estate 
developer. As did Eugene Muse Mitchell, a well-to-do lawyer whose preco- 
cious 13-year-old daughter Margaret was already writing stories about gal- 
lant knights and beautiful ladies that anticipated her novel Gone with the 
Wind. Yet it wasn't just the rich who spoke out. The following Sunday, many 
members of Atlanta's clergy followed suit. The Reverend L. O. Bricker, pas- 
tor of the First Christian Church, declared: "Frank should have a new trial 
because under the awful tension of public feeling, it was next to impossible 
for a jury of our fellow human beings to have granted him a fair, fearless and 
impartial trial." The Reverend Julian S. Rodgers, a Baptist, sought to quiet 
any still-stirring anti-Semitic sentiments, admonishing his congregation: 

The fact that Frank is a Jew should not discredit him. His race is the mir- 
acle of the ages. It stands out conspicuously for patience, forbearance and 
obedience to law. If Leo Frank is a criminal, it is not because he is a Jew, but 
in spite of it. 

The Journal's editorial was, quite simply, a call to arms, and by the next 
week, other Georgia papers— among them the Albany Herald, the Dalton 
Citizen and the Thomasville Times-Enterprise— h&d demanded a new trial 
for Frank, too. From afar, the New York Times breathed a sigh of relief: 

Even among the people of the City of Atlanta, the feeling in regard to 
Frank, convicted of the murder of Mary Phagan, has undergone a marked 
change. The belief grows and daily spreads that Frank was not convicted on 
the evidence, that he is a victim of the clamor and rage of an excited public. 

The light, as Frank himself again declared, truly did seem to be breaking. 



BRIGHTNESS VISIBLE 383 



The first indication that the skies might once again darken for Leo Frank 
came, as had so much in this saga, in the form of a newspaper headline. "The 
Frank Case: When and Where Shall Rich Criminals Be Tried?" thundered 
the banner stripped across the front page of the March 19 edition of the Jef- 
fersonian. After nearly eleven months of silence, the weekly organ of the 
populist firebrand Thomas Watson had joined the battle, its entry an unin- 
tended consequence of the Atlanta Journals alliance with the condemned 
man. As Watson declared in his opening blast: 

For many years, I have not taken the Atlanta Journal, nor have I read 
it. Recognized by everybody as the organ of Senator [Hoke] Smith and 
edited with the most utter disregard for truth and liberality, I have not 
cared to pay any attention to it. 

Last week, however, there came to my address a blue-marked wrapper 
enclosing the Journal; and the leading editorial was blue-marked also. As I 
got a copy, it is reasonable to suppose that everybody got a copy, just as 
everybody gets copies of Senator Smith's senatorial utterances— the same 
being equivalent to oracles from the fountain-head of Wisdom. 

The marked editorial in Senator Smith's newspaper bears the modest 
headline, "FRANK SHOULD HAVE A NEW TRIAL!" 

The case is still pending; Judge Ben Hill knows that he will soon have to 
pass upon an extraordinary motion for a new trial; hence, Judge Ben Hill 
is peremptorily, abruptly and insolently told by Senator Smith what he 
must do. 

The effort on the part of Senator Smith's newspaper to degrade our 
Supreme Court, vilify Judge Roan, brand twelve jurors with eternal infamy, 
blast the future of a thoroughly brave and efficient Solicitor General AND 
TO DICTATE IN ADVANCE TO JUDGE BEN HILL moves me to 
enter a protest against what seems to me a new and lawless method of try- 
ing a criminal case. 

Had the Sage confined himself to the merits of the Journals position, his 
remarks might have been viewed as simply the comments of a fiercely 
opposing sensibility. But as his many references to Hoke Smith suggest, he 
was acting out of a deep-seated personal animus that found its roots in an 
incident that had occurred nearly a decade before and had nothing to do 
with Frank's pending motion. In 1907, Watson had gone to then governor 
Smith and requested a pardon for one Arthur Glover, a longtime loyalist 
under sentence of death for the murder of a female factory worker outside 
an Augusta textile mill. Since his support of Smith in the 1906 election had 



384 AND THE DEAD SHALL RISE 

essentially put him in office, Watson viewed executive clemency for Glover 
as the payment of a political debt. The state's evidence, however, was solid, 
and Smith allowed the execution to proceed. Ever since this "betrayal," C. 
Vann Woodward would observe in his biography, Tom Watson: Agrarian 
Rebel, Watson's "desire to bring disgrace upon Hoke Smith [had] become a 
blinding obsession." In 1908, it led him to back Marietta's Joseph Brown in 
his victorious gubernatorial campaign against Smith, and now it was again 
the primary motivating factor. If the Journal was for Frank, then the Jeffer- 
sonian would be against him, and as Watson proceeded to make clear, 
he would relish the fight. Indeed, the stark juxtaposition the Frank case 
presented between rich and poor, capital and labor, meddling Yankee 
and native Southerner seemed tailor-made for him. Regarding the just 
instigated high-profile campaign to save the condemned man, Watson point- 
edly asked, "Who is paying for all this?" Then, taking a potshot at the 
clergymen who had jumped on the bandwagon, he demanded: 

Does the church invade the province of the State when preachers of a 
certain sort prostitute their sacred office and attempt to try criminal cases 
in their churches'? 

Finally, he raised what he saw as the tacit assumption behind the effort to 
win Frank a new trial, inquiring: 

Does a Jew expect extraordinary favors and immunities because of his 
race? 

In this case, the defendant is taking that position. Anyone who has 
noticed the New York papers has noticed the persistent efforts made from 
Atlanta to arouse the Hebrews into believing that Frank is a victim of race 
prejudice. 

Is it wise for the Jews to risk the good name and the popularity of the 
whole race in the extraordinary, extra-judicial and utterly unprecedented 
methods that are being worked to save this decadent offshoot of a great 
people? 

Few foes were more formidable than Tom Watson. Equally worrisome, 
however, was the reappearance of another adversary— Hugh Dorsey. Hav- 
ing recovered from the setbacks of late winter, the solicitor was aggres- 
sively preparing for the approaching confrontation in court. Day and night, 
such prosecution stalwarts as Chief of Detectives Newport Lanford and 
John Black, Pat Campbell and John Starnes came and went from Dorsey's 
office, and soon enough, the broad outlines of what the solicitor had in mind 
emerged. For starters, he made it plain that he meant to challenge at least 



BRIGHTNESS VISIBLE 385 

some of the many retractors, releasing an affidavit in which George Epps's 
father swore that his son had told him Mary Phagan was terrified of Frank. 
Second, he let it be known that he planned to contest a point that most 
thought he'd conceded— Dr. Harris's finding that the hair discovered on the 
factory lathe did not come from Mary's head. The solicitor revealed this 
intention in what for him was a perfect venue— the trial of Jim Conley on 
the charge of being an accessory after the fact to murder. Dorsey did not 
relish prosecuting a man who'd done so much for him. As he declared up 
front: "Conley had nothing to do with [the crime]. He was just Frank's fool 
and ought not to be punished." Dorsey did relish, though, the chance the 
proceeding gave him to get into the record testimony he could cite during 
the upcoming hearing. Hence in accordance with an agreement made in 
advance with Conley's lawyer, William Smith, the solicitor called only one 
witness, Will Gheesling, the undertaker who'd prepared Mary Phagan's 
body for burial. In response to a series of questions that had no bearing on 
Conley's case, Gheesling stated that on the morning after the murder, he'd 
washed little Mary's blood-matted scalp with a pine-tar soap that could 
have so altered her hair's texture and color as to destroy any similarity 
between it and the strands located by R. P. Barrett. Having thereby armed 
himself with a sworn statement that called Harris's assertion into doubt, 
Dorsey detailed the evidence against Conley, concluding: "If the law didn't 
demand his conviction, I would say let him go." In response, Smith argued 
that since Conley had been recruited merely to stand guard, "the only way 
[he] was an accessory was in that he helped Frank in furthering his sexual 
desires"— which was hardly illegal. Nonetheless, after just twelve minutes 
of deliberation, the jury found the Negro guilty. Yet once the verdict was 
returned, Judge Ben Hill imposed the lenient sentence of one year on the 
chain gang. There was, in short, but a single loser here— Leo Frank. 



To say that William Burns's involvement in the Frank case allayed the 
defense team's concerns regarding Tom Watson and Hugh Dorsey would 
be an overstatement. Yet the detective's reputation was such that his mere 
presence in Atlanta— a presence that due to unfinished business in the 
North did not become permanent until the third week of March— outshone 
everything the Sage and the solicitor said or did. Just the sight of Burns set- 
tling down to breakfast each morning in the fern-filled pink-and-white din- 
ing room of the grand Georgian Terrace Hotel suggested that a higher 
power was now at work. Surrounded by half a dozen reporters, attended by 
a traveling secretary and assorted subalterns, and invariably clad in a crisp 
houndstooth suit that set off his famous red hair and mustache, the detec- 
tive exuded energy and confidence. This was America's greatest private 



386 AND THE DEAD SHALL RISE 

investigator, and between bites of his soft-boiled eggs and toast, he would 
regale the table with war stories, pausing only to dictate telegrams to clients 
and operatives in far-flung climes. Then, with the entire retinue in tow, he 
would stroll down Peachtree Street to his agency's local office, declaiming 
not just on aspects of the Phagan murder but on his certainty that he would 
solve it. "I have no doubt concerning the ability of myself and that of my 
associates to clear up this affair," Burns exuded on one of the first of these 
outings. "I have been able to clear up far more baffling mysteries." 

Brash, boastful, at times bedazzling, Burns was also aware that as far as 
the Frank case was concerned, none of it would get him very far unless he 
simultaneously conveyed the impression that he sought the cooperation of 
the Atlanta Police Department and possessed an open mind regarding the 
possibility of his client's guilt. Early on, he declared: "I know the people of 
this community were justly incensed over this atrocious murder in their 
midst. The officials charged with the duty of bringing to justice the person 
or persons responsible for the crime are to be commended for the rigorous 
manner in which they took up the investigation." As for his own investiga- 
tion, he vowed that he would "strike to the heart of the truth no matter who 
it affects," adding that if in the course of his operation he found that Frank 
was the murderer, he would say so. 

While it's unlikely that Newport Lanford and company put any more 
stock in Burns's professions of evenhandedness than Burns did, they 
responded in kind. Proclaimed Lanford: "I will throw open to Burns all 
information available to my department." As a consequence, the private 
investigator began work in an atmosphere that on the surface was con- 
ducive to progress. He devoted his first days in Atlanta to poring over the 
Brief of Evidence used during the appeal to the Georgia Supreme Court 
and meeting with Luther Rosser, Herbert and Leonard Haas, Detective 
C. W. Burke (who would hereafter report to him) and, most extensively, 
Leo Frank. Following this opening round of discussions, he visited the 
pencil factory, where, as the Journal put it, he examined the crime scene 
from the ground up, starting in the basement and finishing on the second 
floor, paying special attention to Frank's office and the metal room. Then 
he announced plans to interview everyone from John Starnes and Hugh 
Dorsey to Monteen Stover and Jim Conley. 

By the middle of his initial week on the job, Burns had grown even more 
optimistic about his prospects for success. "This case," he told the Georgian, 
"is easier than I expected. The facts will speak for themselves when made 
public. I am confident that Mr. Dorsey is open to conviction if it should 
develop that a grievous mistake has been made." Having thereby tipped 
his hand, the detective immediately backtracked, insisting: "I have never 



BRIGHTNESS VISIBLE 387 

expressed any conviction as to the innocence or guilt of Frank and do not 
intend to do so until the investigation is completed." But as to the larger 
issue, he remained resolute. "The trail certainly looks clear enough to me, 
and I believe Atlanta and the country at large will be satisfied that the truth 
has been found when the final report is made." 

Just what Burns had uncovered that enabled him to speak with such 
assuredness, he would not say. He did, however, offer a tantalizing clue. 
Like Dorsey and Lanford, he had determined that Mary Phagan's mur- 
derer had been motivated by an unnatural lust. But unlike the authorities, 
he did not believe that Leo Frank was so inclined. "In my work," the detec- 
tive told t